Legal Separation: An Overview
Legal separation is an avenue some couples choose to explore before fully committing to a divorce. By legally separating, couples can determine if life apart would be better than trying to remain married. Legal separation grants full or partial awards of spousal maintenance, custody of any children, and allocation of debts and property. Essentially, the terms of a legal separation are the same as those of a divorce, except for the fact you remain married.
Legal separation has many advantages. For instance, it allows couples to create their own, individualized plan for parenting , education and upbringing of any children. Further, it allows you and your soon to be former spouse to divide your finances accordingly. Moreover, your former spouse cannot make any significant financial decisions up to the point a divorce occurs.
If you and your spouse are unsure of whether to pursue a divorce or legal separation, you can always draft a separation agreement which will turn into a marriage settlement agreement if you decide to go through with a divorce. This way you can try to fix your marriage or relationship while knowing you have an enforceable agreement in place should you be unable to do so.
Requirements to Obtain a Legal Separation
To file for legal separation in Arizona, there are certain eligibility requirements that must be met by the couple. One or both parties must be either residents or domiciled in the state of Arizona for 90 days immediately prior to the filing. If unable to establish Arizona residency, such as when a couple is only visiting the state, a legal separation may also be filed in the other person’s state of residency or domicile.
Typically, courts prefer to see a person establish residency in order to be able to have the option to file for dissolution of marriage at some point in the future. A person may be able to file for divorce in Arizona if he or she has been living in Arizona for nine months, so it’s better in these cases to file for legal separation to maintain the state’s jurisdiction.
However, if a person has been a resident of Arizona for over 90 days prior to filing, there are no limitations placed on his/her ability to file for separation. Legal separation can also be obtained even if one party is incarcerated, as long as the other party is also eligible for separation.
There are no prerequisites to be eligible for legal separation, although there are a few exemptions. If a couple has been legally separated for at least six months and has been living separate lives, they are not required to satisfy the time requirements in order to get a no-fault divorce.
How to Obtain a Legal Separation
Just as with divorce, the legal separation process starts when you choose to end your marriage. In Arizona, this involves filing forms with the Clerk of Court with jurisdiction over your county. If you and your spouse have lived in different counties for at least three months, you can also file where either person resides. Ex-filing can have strategic advantages.
To file for legal separation, you will need:
To access the above forms, you can visit the Clerk of Courts office in your jurisdiction or visit AZCourtForms.gov on your home computer. Some courts may charge a small fee for paper copies. Others have computerized kiosks available for public access.
In your legal separation application, you must name your spouse and children, if any. It is not required to reside in the same state as your spouse to file, but doing so may make the process easier.
You must file the petition and supporting documents and pay your filing fee to your local Clerk of Court office before you begin living separately. The exact amount depends on the court, but you should be prepared to spend no more than $260.
If your spouse and children do live in the same jurisdiction, you can file for legal separation at the same time as your petition for divorce. Either spouse can petition the court for divorce — you do not have to wait for six months to file an action. But you must wait at least 60 days from filing the application before you file a petition with the court for a divorce.
Most courts in Arizona require couples to attend a conciliation conference one month after filing to determine whether you wish to proceed with a divorce instead of a legal separation. If you settle the case during this conference, the court will direct you to file for a divorce. If settlement is not possible, the case will go to trial.
The court will hear from both spouses regarding the terms of the separation agreement. If you have no disputes, the agreement will be approved without a trial. If you have conflicts, you may need to prove to the judge that your spouse is unreasonably refusing to sign the separation paperwork.
Documents Needed to File
If you are filing for legal separation in Arizona, the list of important documents to be filed within a petition to the court include:
- Original Petition for Summary Legal Separation
- Notice of Right to Convert to Divorce Decree
- Petition for Orders of Assignment
- Vital Statistics form.
- Preliminary Injunction form.
- Notice of Appointment of Court Representative for Domestic Relations Case.
- Affidavit of Probable Cause for Issuance of Order of Assignment.
- Exhibit to Affidavit of Probable Cause for Issuance of Order of Assignment.
- Information Sheet Domestic Relations.
- Application and Order for Appointment of Temporary Counsel and/or Parenting Coordinator
- Financial Affidavit for Married Persons
- Notice of Change of Address
- Consent to Jurisdiction by Divorce Degree
- Order appointing Guardian ad Litem for a Minor or Incapacitated Person
- Summons
- Notice to Biological Father of Child Born Out of Wedlock
- Proof of Service or Acceptance of Service
These documents include the essential principles of family law in Arizona:
- The first document is the court petition stating that you are filing for legal separation from your spouse. The petition states the complete names of both spouses as well as their dates of birth, race, current address, and the same information concerning each child of the marriage.
- Your original marriage certificate is also required to be filed with the petition as well as your birth certificate.
- Provide accurate information regarding all the property and assets owned by both you and your spouse. A preliminary injunction is also provided with the Petition for Summary Legal Separation.
Your petition for legal separation will also include an order of assignment, which identifies temporary orders from the judge, such as those dealing with visitation, custody, spousal support, and other issues that commonly arise during the legal process.
Costs and Fees of Filing
When you are going through a legal separation in Arizona, you may incur various costs and fees associated with the process. It is important to be aware of them so you can plan accordingly. Some of the most common expenses include: If you hire a legal separation attorney to help you navigate this process, you will pay their hourly rate for their services, as well as for any administrative work in the office. The hourly rates of attorneys can vary significantly based on multiple factors, including the attorney’s experience level. You will generally be required to pay court filing fees in order to officially file for legal separation. The amount of these fees can vary depending on the county in which you file your case, but in Maricopa County, for example, the current fee for filing a Petition for Legal Separation is $276. There is a significant difference between serving someone with divorce papers and serving someone with legal separation papers. If you are serving someone with a divorce action , you are required to use a third party process server. However, since legal separation does not carry the same implications as divorce—such as immediately terminating a marriage—the courts allow spouses to personally serve each other with separation papers. Either way, there are fees associated with serving your spouse. A process server typically costs about $50, while hand-delivering the papers to your spouse should cost little to nothing. If you are unable to afford the fees associated with a legal separation, you can seek an Application for Deferral of Court Fees and Costs. In order to qualify for this deferral, you must not be able to afford to pay the filing fees. If you are granted a deferral, it is important to understand that you will still be responsible for paying those fees—even if it is at a later date.
Legal Resources and Assistance
Several resources are available for individuals considering filing for legal separation in Arizona. Legal aid services provide a free or low-cost service for eligible individuals in the Phoenix area. The stuarttreatman.com website, in addition to the firm’s blog, contains numerous resources for those dealing with legal separation and divorce. Because legal separation involves many complex issues and considerations, hiring a skilled family law attorney is essential. Many people have never employed a lawyer and worrying about hiring an experienced one can be more stressful than filing on your own. Family law attorneys that specialize in legal separation cases are experienced in handling both simple and complex matters. They understand Arizona law and family court and help clients throughout the legal process. The legal separation procedure is outlined by the Arizona statutes.
Next Steps After Filing
After you have filed for legal separation in Arizona, the case will follow the same path as a divorce case. You will each be required to exchange financial information and documentation. If there are minor children of the marriage, you will each be required to file a Parenting Plan. It is unlikely that you will have to go to court. However, should the case not settle, there will be a court hearing to determine the legal issues, such as child custody, parenting time, child support, property division, spousal maintenance. There is no trial in this type of case . The parties can elect to have a judge or court commissioner decide the case, but in most cases the parties will agree on a settlement.
The parties will sign the Separation Agreement. This will have to divide property and debts, address custody issues, parenting time, child support and spousal maintenance if any. This becomes a court order.
Since a legal separation does not end the marriage, neither party may re-marry until after they obtain a divorce decree.
A legal separation decree can be converted to a decree of divorce if the parties decide they want to go their own separate ways for good.