Introduction

A legal separation can be a good alternative to a divorce in AZ for some people. In this article I will cover all of the steps you will need to take to file for a legal separation, what the process looks like, and some considerations for whether a legal separation is right for you.

Jurisdiction – making sure  you can file first

First and foremost, you will need to determine if you can even file for a legal separation in AZ. Statute 25-313 requires that you have lived in AZ for 90 days before you can file for a legal separation in AZ.

In addition, if you have children, then Arizona will need to be considered the “home state” of the children, meaning they have lived in Arizona for at least 6 consecutive months (or since birth if younger than 6 months old). This is required by the UCCJEA (Uniform Child Custody and Jurisdiction Enforcement Act) found in 25-1031.

If you happen to have a covenant marriage, then you’ll also need to make sure you meet one of the requirements in 25-904 before filing for a legal separation.

All legal separation cases are filed in superior court. The superior courts are divided up by county. So, you’ll need to file for legal separation in the county where you reside (or where your spouse resides if different from you own county).

Filing for legal separation in AZ

To get the process started for a legal separation, you’ll need to file a petition for legal separation. If you live in and plan on filing in Maricopa County, you can find a free form of the petition here.

In addition to filing the petition, you will also need to file a summons, preliminary injunction, notice regarding creditors, and an order to attend the parenting class and affidavit regarding minor children (if you have minor children in common with your spouse).

Next, you’ll need to include a Summons. A Summons is standardized and basically informs the other party (your spouse) that a law suit has been filed (the divorce) and that there is a time frame for when a response needs to be filed to your Petition. The contents of the Summons is provided in Rule 40 (Arizona Rules of Family Law Procedure).

The next document you’ll need to file is the Preliminary Injunction. This document is standardized and the language required is established by Arizona law (statute). You can find the language required here in A.R.S. 25-315(A). This document is technically the first court order to be issued once you file for legal separation. Be sure to read it carefully as its terms will apply to you once you file.

The form you’ll need to file is the notice regarding creditors. This too is a standardized document as well. You can find the terms required for the Notice regarding creditors here in A.R.S. 25-318(H). This Notice has useful information about how the legal separation will and will not impact creditors for any debts you have, and some options to find out more about your debts.

Lastly, getting back to children, if you have a minor child or children, then you’ll also need to file an Order regarding the court-ordered parenting class. This too is a fairly standardized document setting forth the requirement to take the required parenting class. By statute (A.R.S. 25-352), both parents are required to take a parenting class for the divorce to be granted. Be sure you attend a court-approved parenting class after you file.

When you file, you’ll need to take multiple copies of each document as the court clerk will take the original copies, and you’ll want at least two extra copies (one for you and one to serve on your spouse).

Service of the Petition and documents

After you file, you’ll need to serve your spouse with all of the documents you just filed. Service in Arizona has to be done by either a sheriff, or a private process server. This will cost around $50-100 or so depending on whether multiple service attempts are needed.

The date you serve your spouse is significant because (assuming the legal separation gets completed), the date of service terminates your marital community. This means that you and your spouse are no longer accumulating community property or debts.

Arizona is a community property state and so normally (per 25-211), with some exceptions all of the property and debts you acquire during marriage are community. Upon a legal separation, the court is required to divide all community property equitably, which for the most part means equally.

So, the termination of the marital community is significant because all of the property (or debts) you acquire after that date will be your separate property. The court does not divide separate property, but rather allocate it to the party who owns it.

After you serve the petition for legal separation and other documents on your spouse, your spouse will have 20 days to file a response. This is the beginning stages of a legal separation, much like a divorce.

Alternatively, your spouse can accept service of the Petition and accompanying documents. This will have the same effect as being served, but will save the cost of hiring a process server. The acceptance of service will need to be signed and notarized by your spouse, as well as filed with the court afterwards.

Why Legal Separation in AZ instead of Divorce?

There are more similarities between a divorce and legal separation in AZ that many people realize. I have drafted an entire article dedicated to covering the differences, similarities, and why you might want to choose a legal separation in AZ over a divorce.

Any additional questions?

If you still have more questions about a legal separation in AZ, feel free to contact me and I can update this post as needed.