Legal Separation in Arizona

Some Arizona couples choose legal separation instead of divorce, even when their marriages are irretrievably broken. The process of legal separation, governed by A.R.S. § 25-313, is similar to divorce in many respects, but the couple remains legally married.

In some cases, legal separation serves as a temporary step until the divorce is finalized. In others, couples use it to formally define the rights and obligations of both spouses without dissolving the marriage. Importantly, a legally separated couple cannot marry other people because they are still married.

If the couple reconciles, no further action with the court is required to resume the marriage.

People may choose separation over divorce for various reasons, such as:

• Religious beliefs that discourage divorce
• The need to define rights and obligations while a divorce is pending
• Preserving one spouse’s access to medical benefits
• Protecting inheritance rights

Understanding these factors can help couples determine whether legal separation is the most suitable option for their circumstances in Arizona.

Is Legal Separation the Best Option?

When couples believe their marriage may be ending, they can choose to file for either divorce or legal separation. Many use legal separation as a way to define their rights and responsibilities while deciding whether the marriage can be saved. This period can act as a trial run before a divorce. If the decision is made to proceed with divorce, a separate legal action must be filed.

For a court to grant a decree of legal separation in Arizona, the following conditions must be met:

• One spouse lives in Arizona or is stationed there in the military
• The marriage is irretrievably broken, or one or both spouses wish to live apart
• If it is a covenant marriage, one of the grounds for dissolving a covenant marriage applies
• Both spouses agree to the legal separation
• The court has addressed and issued orders regarding child custody, child support, spousal maintenance, and community property division

If one spouse does not agree to a legal separation, it cannot be granted. In that case, the other spouse is free to file a petition for dissolution of marriage instead.

How to Start the Process in Arizona

To begin the legal separation process, one spouse must file a petition for legal separation with the Superior Court in the county where they reside. After the petition is filed, the court issues a summons, and the filing spouse (petitioner) must formally serve the other spouse with the legal documents. The responding spouse has 20 days to file a response. If they disagree with the separation, the court can convert the petition into a petition for dissolution (divorce).

Some couples choose legal separation because they do not yet meet Arizona’s residency requirements for divorce. Under A.R.S. § 25-312, a divorce cannot be granted unless at least one spouse has lived in Arizona for a minimum of 90 days before filing. Legal separation, however, only requires that one spouse reside in the state at the time of filing. This allows couples to establish rights and responsibilities while waiting to meet the divorce residency requirement.

If the couple has children, they must file a Petition for Legal Separation with Minor Children. If they do not have children, they will file a Petition for Legal Separation without Minor Children.

The only grounds for legal separation are that the marriage is irretrievably broken or that one or both spouses wish to live apart. The petition must include all required information outlined in A.R.S. § 25-314.

Handling the Terms of a Legal Separation

Similar to a divorce, a legal separation can address multiple important matters, including child custody, parenting time, child support, spousal maintenance, and the division of financial assets and debts. One of the main reasons people choose legal separation over simply living apart is the ability to clearly establish and enforce each spouse’s rights and responsibilities. Without a legal separation in place, any verbal arrangements between spouses cannot be enforced in court.

The couple may negotiate the terms of their separation, and if they reach an agreement, they will draft a separation agreement. This document should include all details regarding:

• Property division
• Parenting time
• Child custody
• Child support
• Spousal maintenance during the separation period

If the couple agrees to legally separate but cannot resolve all issues, the unresolved matters can be litigated in a separation trial.

Getting legal help from DM Cantor‘s Family Law Practice (currently known as Cantor Law Group) can assist couples in anticipating and preventing potential problems. A well-drafted, tailored separation agreement that addresses all relevant issues is essential to avoiding unexpected disputes during the separation period. It is also important to ensure that all agreements are included in the written document—side agreements not included in the separation agreement cannot be enforced by the court.

When Children are Involved

If children are involved in a legal separation, the petitioner must file the Petition for Legal Separation with Children along with several other required documents:

• Sensitive Data Cover Sheet
• Child Support Form
• Summons
• Preliminary Injunction
• Parenting Plan
• Affidavit of Minor Children
• Order and Notice for the Parenting Education Program

With the exception of the Sensitive Data Cover Sheet, all of these documents must be formally served on the respondent spouse. The respondent then has 20 days to file a response. If they object to the legal separation, the court will not grant it and will instead convert the case into a divorce proceeding. Additionally, legal separation is not available to couples in a covenant marriage.

If the other spouse agrees to the legal separation but disputes certain proposed terms, they may contest the petition. The couple can then attempt to resolve the disagreements through negotiation or alternative dispute resolution. It is also possible to reach agreements on most issues while leaving only a few unresolved matters for litigation, which can make the process more efficient.

Because legal separation can take just as long to complete as a divorce, it is important to file requests for temporary orders at the same time as the petition. These orders can help establish each spouse’s rights and responsibilities while the case is still pending.

Do You Need an Attorney During a Legal Separation?

Yes, retaining an attorney during a legal separation is highly advisable. An attorney with extensive family law experience can identify potential future issues, guide you through the process, and assist in negotiating the terms of your separation. This can increase the likelihood of a smoother, more efficient resolution for all parties involved.

Working with DM Cantor‘s Family Law Practice (currently known as Cantor Law Group) ensures you have skilled legal representation to protect your rights and help you navigate the complexities of a legal separation.