Legal separation: What it is and what it isn't

Joan M Bundy

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Family Law Attorney - Chandler, AZ

Contributor Level 14

Posted about 2 years ago. Applies to Arizona, 2 helpful votes

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1

OK, so what is this thing called "legal separation"?

You're wondering, "Is this what happens when one of us moves out of the house?" No. That is physical separation, which is a question of fact that certainly has relevancy in cases involving legal separation, divorce and even unmarried-partner child-custody or proceedings, but it is not a legal status in and of itself. To be legally separated, one or both of you must have filed something with a court of law asking to be declared legally separated. The basic idea behind this legal status is that is gives you and your spouse some "breathing room" or a "timeout" to decide what it is that you want to do: Either get back together romantically, or go your separate ways legally (also known as "divorce"). In legal separation you get a "decree," but do not misunderstand: This is NOT a decree of marital dissolution. It is a declaration of a temporary legal status that typically lasts for a year but can be shorter or longer depending on the actions and decisions of you and your spouse.

2

Do we have to be physically separated to be legally separated?

Interestingly, there is no straight-forward answer to this question. Arizona law is oddly silent on whether the parties must be "living separate and apart"--the legal term of art for physical separation--to become legally separated. However, if you are in a covenant marriage, physical separation can be important. There, voluntarily not living under the same roof for at least two years can get you legally separated (as can a spouse committing adultery; sexual, physical or emotional abuse of the other spouse, a child, or a relative living in the marital household; abandonment for at least a year; drug or alcohol abuse, etc.), and two years of physical separation, or one after obtaining a legal separation decree, can get you divorced. However, even with a "regular" marriage, to file for legal separation, at least one of you must have decided that "[t]he marriage is irretrievably broken or one or both of the parties desire to live separate and apart."

3

Can one or both of us file for divorce in the middle of being legally separated?

Yes, of course. As stated above, there is no minimum or maximum length of time for legal separation, and a divorce filing certainly will end one. During the legal separation, the Court almost always will refer the two of you (unless you both say you don't think it will be worthwhile) to Conciliation Court, an arm of the court that offers marital counseling, mediation and parent education classes. However, be aware that in the case of legal separation (and divorce), it likely will be only for mediation--to see if you can agree on any of the decree terms--and/or a parenting review. It will NOT be for marital counseling, so if you think there is any chance you can or want to try to reconcile, consider filing for "conciliation" instead (see link below). Conciliation is a true "cooling-off period" of 60 days (with the possibility of renewal) that essentially puts on hold (sometimes called a "stay") the filing or continuing forward of an annulment, legal separation or divorce.

4

So what is the point of legal separation if it's just going to end in divorce anyway?

While statistically that is the most common result, it certainly doesn't have to end in divorce, which, again, is up to you and your spouse. However, it definitely is a tangible step in that direction, and much further along the spectrum than conciliation. You can look at it one of two ways: If you do end up getting divorced down the road, legal separation is like a "dry run" that can prepare you for the divorce proceeding mentally and emotionally. The decrees are very similar in terms of the things that the court says must be addressed, including child custody/parenting time/child support/tax exemption distribution (if one or more children are involved), spousal maintenance, and property and debt division. On the other hand, you could argue that you are just wasting time, money and effort by going through what is nearly an identical process twice. Again, this is a decision for you and your spouse to make based on what is best for your family's own unique situation.

5

Notes on covenant marriage

If you are from outside Arizona, and even if you live here, you may not have heard of "covenant marriage." In Arizona, it is a type of marriage couples can opt to enter here into that carries certain heightened burdens such as premarital counseling and greater requirements for legal separation and divorce. Please see links below for more information.

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Some final thoughts

Always consult with a competent family law attorney who is knowledgeable in and has considerable experience with legal separations before deciding whether to proceed with one yourself. Best of luck to you and yours!

7

Legal disclaimer

This legal guide should not be construed as formal legal advice or the formation of a lawyer/client relationship.

Additional Resources

Conciliation: What to file for if you want to see if you can salvage your marriage before filing for legal separation or divorce

Requirements to obtain a legal separation in Arizona

Requirements to obtain a legal separation in Arizona if you are in a covenant marriage

Physical-separation options to end a covenant marriage

Covenant marriage: What is it and should I enter into one?

Joan M. Bundy, Chandler family law attorney

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