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Family Law Research Guide: Legal Separation

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Legal Separation

Married persons can choose to legally separate, rather than divorce. Legal separation is an alternative to divorce where there has been an irretrievable breakdown of the marriage and the opposite party does not object to the separation. Legal separation does everything that a divorce does except actually terminate the marriage. Legal separations are generally governed by A.R.S. § 25-313 and the following sections.

In a legal separation no specific period of domicile is required. Instead at the time the action for separation is brought, one of the parties must live in Arizona or be stationed in this state while a member of the armed services A.R.S. § 25-313(1). As such, legal separation can provide a remedy when neither party has sufficient length of residency to secure a divorce. As in divorce, the court, to the extent its jurisdiction allows, makes provisions for child custody and support, maintenance, and property division. A.R.S. § 25-313(5).

Why do individuals choose legal separation instead of a divorce?

Such a choice is usually made because of religious restrictions on divorce, moral objections to divorce, or health insurance concerns. Most insurance policies will continue to carry a legally separated spouse but will not carry an ex-spouse. Some married persons choose to legally separate in order to continue to allow one spouse with medical problems to be covered under the other spouse's medical insurance.

What if I want a legal separation but my spouse does not?

If one party objects after a Petition for Legal Separation has been filed the court cannot proceed on the matter. When a party objects, the court shall direct that the pleadings be amended to a divorce action. If residency is an issue one of the parties must meet the 90 day residency requirement before the action can proceed. A.R.S. § 25-313(4). So, if one party objects to a legal separation, the parties must either remain married or divorce.

How do I get a legal separation?

Filing for legal separation follows the same process as a divorce action with the exception that the court must find that either the marriage is irretrievably broken or that "one or both of the parties desires to live separate and apart." A.R.S. § 25-313(3). Instead of a Petition for Dissolution of Marriage, one files a Petition for Legal Separation. The Petition should include the information specified in A.R.S. § 25-314. For additional information, see the Divorce page. Sources for forms to file for a legal separation can be found in the Family Law Resources page.

How do I get a legal separation if I'm in a covenant marriage?

The process for filing a Petition for Legal Separation in a covenant marriage is the same as in a non-covenant marriage. For additional information, see the Divorce page.

However, there are seven specific grounds for legal separation of a covenant marriage in Arizona. These grounds are stricter than those for non-covenant marriage. These grounds include adultery, abandonment for at least one year, physical or sexual abuse of the petitioner or a child, etc. See A.R.S. § 25-904 for the specific grounds.

Can I change my legal separation into a divorce?

Either party to a decree of legal separation may file a petition for dissolution of marriage in accordance with the requirements of A.R.S. § 25-314. The petition shall be filed under the same case number as the legal separation but shall be considered and shall proceed as a new and separate action requiring service of process. A.R.S. § 25-325(B). The terms of the existing separation agreement will generally be binding on the Court, unless the Court finds that the separation agreement is unfair. A.R.S. § 25-325(B); A.R.S. § 25-317(B).

 

Last revised:  22 October 2008

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