Separation or Divorce?

May 1, 2013 Cindy Best

A common question spouses have is whether they should get a legal separation instead of a divorce. The answer depends on what you are trying to achieve. If you want some financial protection, or you want to continue your health insurance, a legal separation will accomplish both. If you want to get remarried, you need to get divorced. A legal separation is almost identical to a divorce, except that in the end you are separated, not divorced. The procedures are identical in terms of filing, costs and the final agreements. Financial agreements in a legal separation will become the same financial agreements in a divorce. In other words, you cannot make a decision regarding finances in a legal separation and then change your mind about the same issues in a divorce. So, the financial agreements (or court decisions) cannot be changed in a subsequent divorce action.

Again, children are an exception to this general rule. You and your spouse can make certain decisions and agreements for a legal separation concerning children and then be free to renegotiate or litigate those decisions in a subsequent divorce. Be advised that there is some duplication if a legal separation turns into a divorce.

If the person who filed for a legal separation decides that he or she prefers a divorce, then that spouse will have to re-file the paperwork and pay a new filing fee for the dissolution. On the other hand, if one spouse files for a legal separation, the responsive party can convert the legal separation into a divorce by their responsive pleading (answer), without the consent of the party who filed first and without paying additional filing fees. They must still pay the answer fee.

Do not be lulled into thinking you are getting separated when, in fact, your action may cause your partner to convert your separation filing into a divorce. If either party wants a divorce, there is nothing the other can legally do to stop it.


Children and Custody

Here is a brief overview of custody, with more to come in later chapters. Custody might be easier to understand if you think of two kinds of custody for children: legal and physical. ?Legal? refers to who makes decisions and ?physical? refers to where the kids live and how they ?visit? their parents. Do not be confused by some of the court forms; ?joint legal custody? has nothing to do with where the kids live and how they visit. You will need to determine how you and your spouse share decision-making, where the kids live at what times, how to split holidays, and who pays what for the children.

These details are in Chapter 4, but rest assured, they can be worked out with parenting plans and honest discussions between the parents, always keeping the needs of your children paramount in your negotiations. There are as many parenting plans as there are families; you can be creative about what works for your family, remembering that a good spirit and flexibility will ensure that your children do not become the collateral damage of your divorce.

In 2001, Maricopa County drafted Model Parenting Guidelines that are very useful (See

The court re-drafted new parenting guidelines, but they are not quite as helpful, because they omit all information about the developmental stages of children and how that interplays with their parenting schedules (see Chapter 4 and Resource Guide).

Joint Legal Custody

First, who makes major decisions for the children regarding their health, religion and education? Arizona law reads: ?Joint legal custody means the condition under which both parents share legal custody and neither parent?s rights are superior, except with respect to specified decisions as set forth by the court or the parents in the final judgment or order.?

Sole Legal Custody

Sole legal custody means that one parent can make all the legal decisions for the child without the consent of the other parent. Some legal custody arrangements require the sole legal parent to consult with the other parent before decisions are made, but the sole legal parent can ultimately do what he or she thinks is in the best interest of the children.

Courts generally will consider awarding sole physical custody to one parent if the other parent is deemed unfit ? for example, because of alcohol or drug dependency, a new partner who is unfit, or charges of child abuse or neglect. If this is your situation, you should consider seeking the advice of an attorney.

Joint Physical Custody and Primary Physical Custody

Joint physical custody means that the physical residence of the child is shared by the parents in a manner that assures that the child has substantially equal contact with both parents. The actual schedules that carry out this plan can vary with each family. Primary physical custody means that a parent has the child more than 50 percent of the time.

When the child already lives primarily with one parent and has parenting time with the other, generally the parent with whom the child primarily lives will have primary physical custody, with parenting time for the other parent. Joint physical custody is not always a good idea, especially when the child is an infant or toddler. You can also decide to have a graduated parenting schedule if you have very small children at the time of your divorce. That allows the schedule to take into consideration a growing child?s changing needs.

Joint physical custody works best if parents live near to each other, as it lessens the stress on children and allows them to maintain a somewhat normal routine. Joint custody has the advantages of assuring the children continuing contact and involvement with both parents and it alleviates some of the burdens of parenting for each parent.

There are, of course, disadvantages, which include shuttling children around; serious negative effects on children if there is parental non-cooperation or ill will; and the expense of maintaining two homes for the children. Nonetheless, joint physical custody might be the best option for children when both parents are in agreement and want to parent cooperatively.

Parenting Time

Parenting time is the scheduled time the parents are with their child. A variety of parenting time schedules can be set up by a family, and the schedules can be as different as the families who use them. Some popular parenting time schedules include alternating weeks or spending weekends and holidays with one parent and weekdays with the other.

Custody Thoughts

Do not let your children become your personal battleground! If you and your spouse are good parents, everything can be worked out. These admonishments do not apply to the parents who find themselves in the ugly predicament of dealing with domestic violence, child abuse, drug abuse or mental disorders. Those parents may need to fight to protect their children. This book and these comments are not directed to those tragic situations. Contact an experienced family law attorney if you have any questions.


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