Clients often ask whether they should get a legal separation before pursuing a divorce.  Aside from a few exceptional situations discussed below, the answer is “no.”

An Arizona legal separation is generally not viewed as a precursor to a divorce.  Instead, it is viewed as an alternative to divorce whose use is very limited.  Legal separations are every bit as complicated as divorces.  They result in a termination of the marital community (community property is terminated) the same as in a divorce.  Legal separations take the same amount of time to complete, deal with virtually all the same issues (e.g., child custody, child support, spousal maintenance, and division of assets and debts), and are just as expensive as divorces.

In addition, legal separations are available in Arizona only when both spouses agree.  If one spouse wants a divorce instead of a legal separation, the court will order the action converted to a divorce case.  See A.R.S. Sec. 25-313 (4).   The requirement of an agreement to legally separate is another reason legal separations are uncommon in Arizona.  If both spouses agree they are not ready for divorce yet, they usually simply agree to not file a case at all and to continue to work on reconciling their marriage.  If one spouse feels a case filing is needed, he is usually committed to permanently ending the marriage, so he pursues a divorce rather than a legal separation.

For these reasons, most people who want to divorce their spouses usually file for divorce in the first place rather than for legal separation.  A person who obtains a legal separation and later decides she wants a divorce will have to spend even more time and money obtaining the divorce following the legal separation than if she had simply pursued the divorce the first time around.

In certain limited situations, however, filing a legal separation case may be useful and appropriate.  One key difference between legal separations and divorces is that an Arizona divorce case can only be filed after one of the spouses has been “domiciled”  in Arizona for at least ninety days.  A.R.S. Sec. 25-312 (1).  A legal separation, by contrast, only requires that one of the parties is “domiciled” in Arizona at the time of the filing; there is no ninety-day requirement.  A.R.S. Sec. 25-313 (1).  When a prompt filing is needed in order to gain the protections of the preliminary injunction (A.R.S. Sec. 25-315 (A)) and ninety days is too long to wait, a legal separation may be filed to trigger the preliminary injunction protection.  Then later, after the ninety-day domicile requirement is achieved, the case may be converted to a divorce action.  A.R.S. Sec. 25-313 (4).  In this scenario, the petitioner never truly intends to obtain a legal separation; he files the legal separation intending to obtain a divorce by converting the legal separation action to one for marriage dissolution upon meeting the ninety-day domicile requirement.

In my career, I have filed several actions for legal separation, but as I write this post I only recall three filings that actually resulted in decrees of legal separation.  The others all converted to divorces while the cases were in process, and by the time the final court orders were entered following trial or settlement, the orders entered were decrees of dissolution of marriage and not decrees of legal separation.  The three cases I had in which decrees of legal separation were actually entered illustrate three additional reasons why a person might wish to pursue a legal separation rather than a divorce.  I will discuss them in the separate paragraphs that follow.

  1. Religious Beliefs Against Divorce.   In one case, my client was a committed Catholic woman who did not believe in divorce.  Because of her strong religious beliefs, she pursued a legal separation, her husband agreed, and a decree of legal separation was entered.  Interestingly, approximately three months after the decree of legal separation was finalized, she decided she did not wish to remain married to her husband, so she hired me to file the necessary papers to obtain a divorce for her.
  2. Remaining on Spouse’s Medical Insurance.  In a second case (pre-Obamacare), my client was covered under her husband’s health insurance.  She had a serious medical condition and would not have been able to qualify for her own health insurance due to her preexisting condition.    Her husband’s employer-sponsored  health insurance allowed her to remain covered as a dependent in the case of a legal separation, but if the parties divorced, she would lose her health insurance.  She sought a legal separation in order to keep the health insurance in place.  Thankfully, the husband agreed.
  3. Hope of Reconciliation.  In the third case, the parties agreed they needed a long-term separation and believed they might ultimately divorce, but both held out hope for an eventual reconciliation.  They agreed to legally separate instead of divorce.  If they ever reconcile, they will be able to file a stipulation to set aside the decree of legal separation and return to their previous marital status.

Once a married couple has been awarded a decree of legal separation, they can later seek a divorce by filing a petition for dissolution of marriage under the same case number.  A.R.S. Sec. 25-325  (B).  In such a divorce case following a legal separation, the division of assets and debts contained in the decree of legal separation cannot be modified.  Provisions regarding children, however (legal decision-making, parenting time and child support) can be modified if the Court determines it appropriate.  The spousal maintenance provisions in the decree of legal separation may also be modified, except when the parties to a consent decree of legal separation have expressly agreed that spousal maintenance will be “non-modifiable.”

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