Many clients will ask me "What is the difference between filing for divorce and filing for legal separation?" or "Will filing for legal separation put a stop to our community assets accumulating?" The general answer I give is that filing for divorce and filing for legal separation are fairly similar. However, there are a few distinct, and important, differences that clients need to know before making the decision on which route to take.
Whether you file for divorce or for legal separation in Arizona, the marital "community" is terminated and your assets and debts will be divided. In other words, you and your spouse will no longer accumulate community property, regardless of whether you file for divorce or legal separation. Other key similarities between the two paths are that an order for child support and child custody may be entered into, and in some cases, an order for spousal maintenance as well.
If you want to legally separate, you initiate the process by filing a "Petition for Legal Separation" with the court. If you later want to divorce, or if you decide from the beginning that divorce is more appropriate than legal separation, you file a "Petition for Dissolution of Marriage." Other than the title of the document, the procedure in Arizona for filing a legal separation is identical to filing for divorce.
One of the following differences between filing for divorce versus filing for legal separation may be the determining factor as to why you would choose one route over the other. Here are some key differences between divorce and legal separation: (1) After you are divorced, your legal status is changed to single, as opposed to legal separation where you remain legally married; (2) You cannot re-marry if you are only legally separated; and (3) Some health insurance plans allow your coverage to continue if you are legally separated but not if you are divorced.
If one party files for legal separation, and the other party files for divorce, the court will combine and convert the legal separation case with the divorce case - basically, if one party wants a divorce, that decision overrides the other party wanting a legal separation.
Lastly, if the parties file for Legal Separation and later decide that they want to divorce, the matter can be converted to a divorce proceeding.
The decision whether to divorce or file for legal separation should be determined not only by your personal goals but also by what you want to accomplish legally. For instance, if you'd like to stay married but want to divide your property or protect yourself from your spouse's irresponsible spending; or if you want to separate but find it necessary to remain on your spouse's health insurance; or if you're not sure that you want to permanently end your relationship -- then a Legal Separation may be the best route. On the other hand, if your marriage is over and you just want to sever all ties, then a divorce is the way to go.
Hanna Juncaj is an attorney whose practice is focused exclusively on Family Law. She is a graduate of Arizona State University and Summit Law School, where she was named the Vice Managing Editor of the prestigious Law Review. Hanna is dedicated to helping families and children. She is an attorney who deeply cares about the clients she represents. Check out our website at www.garyfranklaw.com. If you are in need of a consultation, you can always contact us by email or call our office at 602-383-3610.