Understanding Legal Separation in Arizona
It is not uncommon for married couples to feel as if their only option is divorce, but in Arizona, there are actually two very different ways to legally separate from a spouse. The process for legal separation in Arizona is very similar to the process for divorce with a few key differences.
What is Legal Separation?
Legal separation means that a couple will remain legally married while legally dividing their assets and agreeing upon child custody arrangements. It is possible to be legally separated for years or even the rest of your life while remaining married to the other party.
How Legal Separation Differs from Divorce
There are some who choose legal separation instead of divorce because of religious or moral convictions about divorce. Others believe that legal separation allows them to fix their marriage on terms that make sense. While legal separation and divorce are quite similar , there are some key differences to keep in mind.
The benefits of legal separation over divorce:
Legal separation allows you to file for divorce later.
Once you file for legal separation, you have a separate case from your spouse. If you later decide you want a divorce, then you simply file a motion to convert the separate case to the divorce case.
This allows you to retain control over whether you want the divorce, a situation that can be very important for those not at fault for the problems between you and your spouse.
Qualifying Factors in Arizona
Prior to filing for legal separation in Arizona there are certain eligibility requirements that must be met. Arizona Revised Statute 25-311(a) outlines the prerequisites for legal separation: (a) In a proceeding for legal separation, the court may make an order for legal separation of the parties whether the grounds for divorce from the marriage alleged by either party is the cause of the separation or not. The residence requirements for filing for legal separation are the same as filing for divorce. The request for legal separation can be made as a unilateral filing by only one party (the person entitled to file for legal separation is either spouse, regardless of who wants the legal separation), or as a couple filing jointly. With joint petitions for separation, the spouses are in agreement on all issues and seek to resolve everything amicably. A unilateral request for legal separation involves filing certain documents with the court generally including a separation statement, and other forms named by local court rule that vary depending on the county that the parties reside in. The exact forms and rules for filing must be referenced in the court rules of the court in the county of residence, as all individual courts have different rules that apply that need to be followed. If a unilateral petition for separation is being filed, the filing spouse is required to provide the other spouse with copies of the documents filed with the court. Each spouse is also required to provide the court with relevant evidence supporting their requests and the issues they want to resolve. Legal separation is sometimes a prerequisite to filing for divorce in some circumstances, and may be used by parties who are legally required to be separated for a certain amount of time prior to filing for divorce. It is also used in those cases where the parties do not want to get divorced, yet do not want to live together. The legal separation document allows the parties continue on with their daily lives and separate, while the court orders generally put a stop to financial and all marital-related actions that both people used to make together. While partners in a legal separation are still married, Arizona also treats them as legally separate parties. It is essentially the same procedure as obtaining a divorce, yet the difference is that no dissolution of marriage is granted, and both couples remain legally married. A legal separation does not have to turn into divorce, however; the parties can, later on, obtain a divorce if they decide to.
The Legal Separation Process
To file for legal separation in Arizona, you must use the Petition for Legal Separation form (Family Court form 1B). You must file the Petition in the Superior Court of the county where either spouse has been a resident for at least 90 days before filing.
Filing requirements
Your Petition must include the following:
You must also provide the court with the signed Verification form in addition to the Petition. This form must be signed in front of a notary.
Court fees
While the fees associated with filing for legal separation in Arizona may vary by county, the cost will typically be between $272 and $295.
Missing spouse
If you are legally separating from your spouse and he or she is missing, you can still file for separation. Fill out the Petition for Legal Separation (Family Court form 1B) and then file an Affidavit in Support of Service by Publication. This Affidavit must include the names, last known addresses and the last times and places the missing spouse was seen.
If you are seeking a modification of custody orders, you must include the most recent orders obtained in your case, and reference them in the "Relief Requested" section of the document you file.
How to serve the respondent
Once the Petition has been filed, you must have a third party deliver a copy of the filed Petition, signed Verification form and any additional forms or documents to your spouse. This is called "service." If the spouse has signed the Verification form in front of the notary, you need not serve him or her. You cannot serve the Petition yourself. You may have a friend, family member or professional deliver the papers to your spouse. I generally hire an attorney to perform service on the other spouse. That way, my client can focus on his or her own business while the attorney takes care of the legal service issues.
The court will review the Petition and enter a Decree only after six months from the date you file the Petition. The person filing the Petition and the person responding to it will both need to file their federal income tax information, and there may be other information or documents required relating to taxation or other tax related issues.
Before the Decree is entered, it is important to finalize any financial issues such as bank accounts, business accounts, retirement accounts, mortgages, real estate deeds, etc. It is imperative that we have entered into a written Separation Agreement prior to the entry of a Decree of Legal Separation to make sure that each party is protected both now and going forward with respect to child support, spousal maintenance, health insurance, debts, assets, retirement and pension plans, and future claims.
Forms to file for Legal Separation in Arizona
The following forms are required when filing for legal separation in Arizona:
All of the above forms are available through the Arizona Judicial Branch website.
Negotiating Separation Terms
When a couple decides to separate, the negotiation process can be as critical in a legal separation as in a divorce. However, a legal separation does not have to be as contentious as a divorce. This is especially true if you and your spouse are amicable and more worried about the legal issues at hand.
In any separation, there are several points that will need to go through negotiation. First, you will need to make decisions about how to divide marital assets. It is best to agree to divide your assets mutually. You will want to divide items such as:
However, separating all your assets can be trickier than it sounds. For example, houses cannot simply be split down the middle, so you have to determine who gets the home and how it will be split up. In that case, you might have to find equity in the home.
Similarly, dividing goods like furnishings, jewelry, and other personal belongings can be difficult. It is often best to agree upon what is appropriate.
Depending on whether or not child custody is an issue, you will need to determine how your family will continue to function. Many parents will agree to divide responsibilities for parenting time without an issue and structure their lives around going back and forth between homes. We often see couples set up a joint parenting agreement that outlines when children will go to each home during weekends, weekdays, breaks, etc.
However, even without children, a legal separation will still impact couples. They will still need to divide finances. Everything from household bills to taxes needs to be addressed as part of your legal separation. Otherwise, you may end up in another long, drawn-out process with lawyers when you try to separate down the line. In this case, trying to find agreement about taxes and bills as you separate will be ideal.
Whether or not you have children, going to court is typically necessary when a legal separation is final. However, if at all possible, try to avoid going to court during the separation process. If you want to have a better relationship with your spouse after the separation, talk about everything you need to be divided and settled before going to court. If court is going to be necessary, talk with an attorney about your options.
Preparing the Separation Agreement
The separation agreement is a bridging document that will carry you and your spouse to a divorce decree; in fact, it is sometimes called a "pre-decree divorce." This agreement sets the stage for how your divorce will proceed. It addresses the critical issues dividing you, including the division of marital assets and debts, custody of and access to your children, and the payment of spousal support. While you may have a good understanding of what you want in your final divorce decree, it can be difficult to separate out the long-term desires from the short-term realities. A separation agreement allows you to compromise with your spouse with the knowledge of what a judge would order, if he or she needed to make the decisions for you.
Your separation agreement should be specific. For example, it should state that the marital home will be sold and divided equally when the youngest child reaches a certain age, rather than stating that the house will be sold at the time of the divorce. By specifying a time frame, you are more likely to meet the conditions of that timeframe. In addition, you should include how you will divide your moveable property, such as furniture, jewelry, etc. A judge may not be able to divide up furniture and family photos as well as you can do it yourself, so you may be able to reach an agreement without any need for a judge’s involvement.
Once you’ve figured out how to divide up your assets, this done as simply as one person taking one half of the household items and the other spouse getting the other half. Make sure to put a value on what you want , and if necessary, an appraiser can help you determine that value. Determine whether you want to use this value for your divorce proceeding, or whether you want to wait until the decision is made. When the divorce decree is finalized, the division of property needs to be fair, but it can be unequal—not even the judges themselves would follow this into their own divorces!
Spousal support can be a touchy issue, and you may find it difficult to come up with a fair settlement that makes things fair to both of you. Your separation agreement should address how much alimony you will pay or receive, when the payments will be made, and when the payments will end.
Depending on the size of your family and the ages of your children, there may be a number of issues associated with custody, child support, and visitation. Some courts have a form that dictates in which state a child will live on the basis of how many days in a year the child spends with each parent. Because of the variability, it is important to determine where the child will spend the most time, so you can come up with a plan that works for you.
If the thought of separation feels like a huge elephant in the middle of the room, it could be time to consult with an attorney to discuss your options. Most attorneys offer free consultations, and you should take advantage of that offer. Often, you will feel a sense of relief after discussing the situation with someone who is experienced in family law and who knows more about how the divorce process proceeds.
Finalizing the Legal Separation
A legal separation is not finalized until the court issues a decree of legal separation. To obtain a decree of legal separation, both spouses must attend the final hearing. If both spouses appear at the hearing and the court determines that all requirements have been satisfied, the court will then grant the legal separation and issue a decree.
If the parties have any contested issues remaining, the court may set a contested hearing, which could take weeks or months after the date of the final hearing date. A contested hearing can take several hours to complete. If the parties are unable to make an agreement but still want to resolve the contested issues, they have the option to request an informal settlement conference with the judge.
An informal settlement conference is not a formal court hearing, but an opportunity to attempt to resolve a case in front of a judge. Though the informal settlement conference is informal, the judge will be able to make rulings on contested issues. The ruling may or may not be in line with the judge’s decision at trial. The parties may schedule an informal settlement conference with the Family Court Commissioner or a Maricopa County Superior Court judge. In Maricopa County, Phoenix, Arizona, there are several judges that can hear the informal settlement conferences.
There are three possible outcomes to an informal settlement conference: (1) the issues will be resolved, (2) the issues will be partially resolved, or (3) the issues will be unresolved. If all issues are resolved, the parties will enter their settlement agreement in the court record. If there are major issues remaining, a contested trial will be scheduled. If the parties are able to resolve only partially the remaining issues, then they will be referred either to mediation or family court services for assistance in completing the negotiations.
If any of the issues cannot be resolved, a judgment will be entered by the judge on those specific issues. Judgment will be entered on those issues once the court is satisfied that the parties’ positions were thoroughly evaluated. A judgment may include the following: legal decision only, decision and continuance, or judgment.
Legal decision only means that the court has made a formal decision on issues that were contested by the parties. The court will grant a Judgment, Statement, and Initial Order.
Decision and continuance means the judge entered a decision on contested issues but also continued the case for resolution of remaining issues as to property, spousal maintenance, and/or attorneys’ fees.
Judgment means the judge entered a formal decision on all contested issues. The court will grant the Judgment, Statement, and Initial Order.
Changing or Ending a Legal Separation
Just as a legal separation involves filing a petition with the Court, so too does terminating or modifying the terms of a legal separation. While a legal separation is not the same as a divorce, parting ways also does not mean that your separation cannot be altered or even converted to a divorce once you determine that it is finally time for the marriage to end. In Arizona, at any point after a legal separation is filed, either spouse can file a request with the Court to terminate the separation. A hearing will then be set to review the motion, and in many cases the Court will grant the termination. At that point, the action would be treated as a divorce, and the Court would issue a decree of dissolution rather than a separation agreement. In addition to terminatings a legal separation, a person may also file a petition to modify the legal separation agreement. Because both parties must agree to the changes, the Court will also hold a hearing regarding the proposed modifications. If the parties agree to the modification, the order will be signed by the judge and filed. If, however, the Court does not find the modification acceptable, it may be denied. If the party filing the petition does not appear before the judge at the scheduled hearing, a default will be entered against them in many situations and the Court will proceed to grant the requested relief. There are many advantages to filing for a legal separation before filing for divorce, but if a couple has decided that divorce is the best option, they can still do so, and the Court will treat the filing of a legal separation as a dissolution of marriage. In addition, the parties could convert a legal separation to a divorce after one year upon filing a request with the court.
Common Mistakes and How to Avoid Them
Common mistakes and pitfalls in the Arizona legal separation process often arise from a lack of understanding or poor communication. To help you avoid them, here are some commonly observed issues:
1. Lack of Communication
Not discussing the legal separation process with your spouse before beginning the process is a common mistake. You don’t have to have a joint filing—Arizona courts do not require separation agreements to be mutual. However, communicating your intentions and concerns prior to initiating the legal separation process for you and your spouse can go a long way toward making the process easier—and can save you money on attorney fees.
2. Failing to Seek Qualified Legal Representation
Too many people think they can save money using an online program or by having a paralegal type up forms and petitions for them. The end result is nearly always the same—with time and money spent on corrections, later on down the road, when an attorney who specializes in separations and divorce would have gotten it right the first time.
3. Planning for the Future
When you legally separate from your spouse in Arizona, you’re basically setting yourself up for a divorce six months into the separation. After 90 days of filing, your separation must be converted to a divorce petition . The primary difference between divorce and separation is that a divorce automatically converts; a separation does not.
4. Not Getting Everything in Writing
During the legal separation process, like a divorce, an agreement must be made between the separating parties concerning a variety of issues, including property division, provisions for child support, and parenting time. It’s important to remember that even an intent to change a plan—such as a future modification of spousal support—should be put in writing. This can be a formalized document between you and your spouse, or a modification request from your attorney to the court.
5. Paying Spousal Support
If you and your spouse are living apart, but you are not divorced, you will need to resubmit a support petition, the petition you’d filed before separation, to the court to begin paying alimony, or spousal support. This must be done even if you’ve previously agreed on a support amount—unless it’s agreed upon in writing, that amount is considered invalid in the eyes of the law.
A legal separation in Arizona is seen as a waiting period. Many people who file for separation really want a divorce, but they want to delay the process for a variety of reasons. If you’re not ready to take that step yet, then carefully consider and prepare for your separation before proceeding.
