DIVORCE vs LEGAL SEPARATION
When contemplating divorce or legal separation both parties may wonder which is better? When a marriage is ending, one or both spouses may be wondering what the difference is between a divorce or legal separation. There are many similarities and very distinct differences between a legal separation and a divorce. When a divorce is granted it ends the marriage and each spouse’s legal status reverts back to the status of single persons. After divorce most individuals will refer to themselves as single.
Arizona is a no-fault divorce state and Arizona does not require that individuals show some reason for the divorce. The spouses must merely claim that marriage is irretrievably broken. This same standard applies to legal separation with an additional finding of fact. A spouse who files for a legal separation must say to the court that the marriage is irretrievably broken in order to be granted a legal separation and that the opposing party does not object to a Decree of Legal Separation.
It could also be that spouses have made the decision to live separate and apart but do not want to divorce. Sometimes spouses will make a decision to pursue legal separation when their religion prohibits or frowns on divorce. Another common reason for legal separation vs divorce is that one of the spouses needs to continue to receive health insurance and most employers will still recognize the parties as married for purposes of health insurance coverage.
Obviously in a legal separation, the spouses cannot remarry because they are still considered legally married. However, from a financial standpoint, it is important to know that any income earned after a legal separation is considered separate property, not marital property. Any debts that are incurred by either spouse are also considered separate responsibilities. So even though the couple is still legally married, they are not responsible for the debts of the other person, nor do they have a right to the income made by the other person.
Divorce vs Legal Separation -Eligibility for Legal Separation
To be eligible for a legal separation, one of the marriage partners must live in Arizona or be stationed in Arizona while a member of the armed services. Unlike a divorce, legal separation does not require that one of the spouses has lived in Arizona for a specified period of time, just that he or she currently lives in or is stationed in Arizona. To be eligible for a divorce, one of the spouses must have lived in Arizona for 90 days.
There are circumstances when one spouse will file for legal separation but the other spouse does not want to separate, but instead wants to divorce. Perhaps the other spouse would like to remarry. If one of the spouses wants a divorce and the other wants a legal separation, then the court must grant the divorce. Because Arizona is a no-fault divorce state, the court will grant the divorce once it finds that the marriage is irretrievably broken.
Just as in a divorce, if the couple has children, the court will make decisions about legal-decision making (formerly known as child custody) and parenting time. In addition, spousal support and decisions about debts and assets of the married couple are also part of the court’s responsibilities in a legal separation.
Divorce vs Legal Separation -Filing for Legal Separation
Just as in divorce proceedings, when it is decided that the couple will separate, one of the spouses will file a petition for legal separation with the court. There are specific procedures to follow when filing for legal separation. Many couples will make decisions together prior to filing for legal separation about parenting time, legal decision making for children, spousal support, and the division of assets and debts from the marriage.
Divorce vs Legal Separation – Converting a Legal Separation into a Divorce
It is also possible to convert a legal separation to a divorce. The petition for divorce is filed under the same case number as the legal separation, but it is a new and separate process that requires “service of process.” Service of process is legal notice to one spouse of the other spouse’s intent to obtain a divorce.
In order for the service of process to be legal, the court must receive proof of the notice being served to the other spouse. There are several options for service of process including certified mail, service by a certified process server or publication one time per week for three weeks in the newspaper and filing proof that it was actually published. The Divorce Guy offers both legal separation and divorce paralegal services and has experience in using all of these forms of service of process.
When one or both spouses decide they want to use our divorce paralegal service after a legal separation has been granted, the court can decide to grant the divorce. If the court had made a decision in the legal separation as to property, debts, spousal support, legal decision-making, and parenting time, the court may not change that decision unless there are some conditions that justify the change. According to Arizona law, moving from legal separation to divorce will not in and of itself be grounds to change decisions made by the court in a legal separation.
Divorce vs Legal Separation -Covenant Marriage and Legal Separation
In Arizona there is also another form of marriage called a covenant marriage. In a covenant marriage spouses enter into a contract that they will not divorce after receiving premarital counseling. The legal separation process in a covenant marriage is the same as a divorce in covenant marriage. The court must find that certain things happened during the marriage to grant a divorce. When you use our divorce paralegal service we will be required to state what the grounds are for the covenant marriage divorce as opposed to simply stating that “the marriage is irretrievably broken” in a non-covenant marriage divorce.
In legal separation proceedings the spouse who starts the separation is called the petitioner spouse. The other spouse is referred to as the respondent.
In covenant marriage legal separation proceedings, the court must find one of these conditions in order to grant the separation.
- Spouses have been living apart continuously without reconciliation for at least 2 years or 1 year from their legal separation.
- The respondent spouse habitually abused drugs and/or alcohol.
- Both spouses agree to the divorce (as opposed to no-fault divorce where only one spouse is required).
- The respondent spouse has committed adultery.
- The respondent spouse has committed a felony and has been sentenced to death or imprisonment
- The respondent spouse has abandoned the marital home for at least a year and refuses to return.
- The respondent spouse physically or sexually abused the spouse, child, or other relative living in the home.
- The respondent spouse has committed domestic violence or emotional abuse.
Divorce vs Legal Separation –Conciliation
As in a divorce, the court may decide on its own to have spouses participate in conciliation. Conciliation is similar to marital counseling. Conciliation is usually conducted by a family and marriage counselor who works with the courts. One of the spouses may also request a conciliation session as part of the legal separation or divorce process or the court may order it.
If you are considering filing for divorce or legal separation, The Divorce Guy can prepare all the paperwork for you, file it with the court, ensure your spouse receives legal notice, track deadlines, and finalize your case. Call us at (520) 327-1085 in Tucson, if you have additional questions about the process.