What’s the difference?

There is really only one difference between a legal separation vs divorce in Arizona. In a legal separation you are still married after everything is over. In a divorce, you are not.

So what happens in a legal separation in AZ?

In a legal separation you will still deal with all of the same issues, such as property and debt division, spousal maintenance, child support, and custody. All community property and debts will be divided per ARS 25-318. Spousal maintenance may need to be paid per ARS 25-319. Child support will be ordered per the Guidelines, and custody (aka legal decision-making and parenting time) will be established per ARS 25-403. Similarly, you will go through the same process with the courts and it will likely take the same amount of time (generally 6-12 months).

So, why get a legal separation then? There are really only two key benefits of which I am aware. One is religious and the other has to deal with health insurance.

A personal/religious choice

For some, the stigma of divorce or religious consequences of divorce are such that a divorce is either out of the question or at the very least an undesirable outcome. That’s where a legal separation can be of benefit, if both spouses agree.

After a legal separation you and your spouse will be separated legally in pretty much every way except for the marriage. You and your spouse will no longer accumulate community property. You and your spouse will (presumably) live apart physically. You and your spouse will have court orders regarding shared parenting time and making legal decisions for your kids (if any). You and your spouse will have separated all finances so that all previously held community property and debts are divided and any property and debts incurred going forward will be your own. And yet, you and your spouse will still be married.

So, in a nutshell, a legal separation can provide all of the same practical relief of a divorce, except for the actual dissolving of your marriage, to those who want to separate, but for religious (or sometimes personal) reasons, do not want to get “divorced.”

Keeping health insurance intact

For others, there is an issue and concern about health insurance that causes legal separation in Arizona to be a more compelling option.

Take this scenario. One spouse has great health insurance through a steady employer. The other spouse has a health condition that requires a ton of medical care, all of which is covered by the health insurance. If the spouses divorce, then the non-employee spouse will no longer be able to stay on the health insurance plan, even if the spouses agree, because the health insurance provider will not allow it. Only spouses and dependents can be covered (virtually under all health plans) and an ex-spouse is neither.

So, if both spouses agree, then they could opt for a legal separation, get all the same practical relief, but remain married in a legal sense so the non-employee spouse can remain on the health insurance.

Now, this was certainly more of a concern prior to the Affordable Care Act (ACA) because of the issue of being un-insurable. However, now, that is less of an issue since everyone can get coverage, albeit the cost might be high.

Nevertheless, even after the ACA, a legal separation can still be a worthwhile option depending on the circumstances. Even if alternative coverage is available, the benefits of the current policy might be such that a legal separation is more appealing.

Neither spouse can ask for a divorce

All that being said, note that I said earlier that both spouses have to agree. Here’s the thing. In Arizona, only one spouse has to say the marriage is over (“irretrievably broken” is the legal term) and that they want a divorce in order to get a divorce. So, even if you want a legal separation for either of the reasons above, or for any other reason, if your spouse wants a divorce, then the court will ultimately grant the divorce.

You might be wondering what happens if you change your mind later. For instance, perhaps the reasons for getting a legal separation are temporary and the plan is to eventually get divorced.

Well, that can certainly happen. Once the legal separation is finalized, either spouse can later file to get divorced. For the most part, this is not overly complicated since everything else was already resolved in the legal separation, such as property division, support, and custody. Thus, the only item remaining is dissolving the marriage.

You will still have to pay a court filing fee. So at the very least getting a legal separation and changing your mind later is going to cost you several hundred dollars in filing fees and some more court proceedings.

Additionally, depending on how things were wrapped up in the legal separation, it is technically possible that there might be some loose ends that could complicate the divorce, particularly as it relates to property/debt division and spousal maintenance. To avoid any subsequent pitfalls, it would be a good idea to review all terms of the legal separation with a lawyer beforehand (if you’re settling), or the terms of the decree of legal separation afterward (if you went to trial and the court ruled on everything).

I will also point out that you can’t get married after a legal separation until you do get divorced. So, if you get a legal separation and then meet the right person later on, remember that you’ll still have to get divorced before re-marrying someone else. Bigamy is technically a crime in Arizona after all.

Conclusion

That sums it up. People often wonder or think that a legal separation is a half-measure or quicker process than a divorce. However, that simply isn’t the case.

Getting a legal separation vs divorce in Arizona is simply a question of whether you want to stay legally married or not. Everything else is pretty much the same.
If you want to get started with filing a for a legal separation, I suggest you take my free course, how to file for divorce. The only difference will be that you will file a petition for legal separation, not dissolution, and so you would use this form or its equivalent in your County if filing outside of Maricopa County.

You would also need to review ARS 25-313 for the qualifying factors, and 25-904 if you have a covenant marriage.