It is not uncommon for a married couple to face differences that throw their future together into question. However, not all spouses are ready to end their marriage through divorce. Sometimes a legal separation may transit to either reconciliation or divorce hence more practical. Whatever your circumstances are, the legal team at Phoenix Family Law Attorney is ready to assist. We can bring vigilant, experienced, knowledgeable one-on-one family law counsel to your legal separation case, ensuring you can confidently cope with your emotional decisions.

Defining Legal Separation

A legal separation is a court-ordered arrangement where a married couple lives apart, resulting in separate lives. It is an alternative to divorce when the spouses are not sure of the marriage's state but want to have financial responsibilities and boundaries like child custody, custody support, and separation of assets. Nevertheless, those who wish to end their marriage might require a legal separation before the court grants a divorce.

Divorce Vs. Legal Separation

Before deciding to file legal separation over divorce, you need to understand their difference and how they will affect your life.

Both legal separation and divorce have identical effects in numerous ways. They create a space between the spouses, and they live separately. The court orders spousal support, child support, child custody, and marital debt and assets division.

The main difference between divorce and separation is that the marriage is formally ended and you're no longer married in the former. You can move on with life as a single person. You can also remarry.

On the other hand, when you obtain a separation, you are legally married to your spouse. It would be best if you marked that you're married on forms. You can't remarry and are still entitled to inherit from one another. A baby born to a married woman is lawfully a child of the other partner unless established otherwise.

Why Choose Legal Separation Over Divorce

Although divorce and legal separation are similar in many ways, there are notable benefits of separation than divorcing. They include:

  • It permits the spouses time part, away from their marriage's conflict, to determine if divorce is what they want. It is a cooling down period if there have been conflicts in their marriage. During this time, the couple could undergo counseling and finding methods to solve their issues.
  • It permits the preservation of numerous benefits like medical benefits, which end with divorce. Moreover, it is a viable option if the couple is facing financial struggles or if the wife has been out of employment for an extended period, an opportunity to be more financially stable while enjoying the benefits of the marriage.
  • If you're a veteran, you might wish to remain married for ten years so you can obtain the Uniformed Services Former Spouse Protection Act benefits. However, the judge has the discretion as far as splitting property such as retirement income during your marital divorce is concerned.
  • If your religion does not allow divorce, you can live separately and retain the marital status for religious beliefs.
  • Being married for at least ten years means taking advantage of your spouse's social security benefits. If at your retirement age, the spouse will receive more funds than you, you can receive more social security funds on your spouse's social security retirement if you are married for a long time.
  • If you decide to file a divorce, you could change your separation agreement into a divorce settlement agreement. It saves the expenses of a conflicted and extended process through the court process.

Starting Your Separation Process

To begin the process, you should file your petition for legal separation with the Superior Court in Phoenix. The judge will then issue a summon, and you should serve your partner your petitioner. Your spouse has twenty days to respond to your petition. If they disagree, the judge could convert your petition into a petition for divorce.

Some people choose separation because they don't satisfy Arizona's residency requirement for divorce. Per Arizona Revised Statute 25-312, a court cannot issue a divorce decree unless more than one party has lived in Arizona for ninety days before a divorce petition is brought. By contrast, this permits partners to understand their rights and responsibilities before filing a marriage dissolution petition.

A separation might include different provisions on child custody, child support, division of marital debts and property, spousal maintenance, and parenting time. If you move out while legal separation is not effective, it'll be impossible to enforce verbal negotiations that might have happened between the spouses.

You might negotiate all essential issues involving their separation. Once you agree, you will prepare your separation agreement. A separation agreement is a contract signed by partners intended to resolve child, debt, and property issues. Since it is a detailed and complex document depending mainly on the marriage situation, it would help if you talked with a seasoned family law attorney. If you decide that you want the separation but cannot agree, you can litigate your unresolved issues during your separation trial.

Legal Separation Petition With Children Involved

If you have children together, you should bring your petition for legal separation with children alongside other documents, including:

  • Child support forms
  • Sensitive data cover sheet
  • Preliminary injunction
  • Summons
  • The order and notice for the parenting education program
  • Affidavit of minor children
  • Parenting plan

You should serve all the paperwork on your respondent partner. Your spouse has twenty days to bring their response to your petition. If they object to the separation, the judge won't grant it. Instead, the judge will convert your case into divorce.  Additionally, the court will grant the legal separation if you have a covenant marriage.

Should your partner agree to legal separation but disagree with any of the projected terms, you could contest your petition. You can then settle through an alternative dispute resolution method or negotiation.

How to Turn Your Separation into a Marriage Dissolution During Your Case

If you currently have separation proceedings, you might change the separation to a marriage dissolution by adjusting the petition for legal separation into a petition for dissolution of marriage.

As the petitioner, you should file an Amended Petition for Dissolution of Marriage provided your spouse hasn't filed a Response to Petition for Legal Separation.

Suppose your spouse (the respondent) has already brought the Response to Petition for Legal Separation. In that case, you should bring a motion seeking a judge's approval to bring your modified petition to turn your separation proceedings into divorce. Alternatively, you might pursue the respondent's agreement to change your separation to a divorce case.

Suppose you're the respondent served with the Petition for Legal Separation and plan converting your proceeding to marriage dissolution. In that case, you should file a Counter-Petition for Dissolution of Marriage and Petition for Legal Separation.

Assuming you're a respondent and initially brought a Response to the Legal Separation only, you should bring a motion to modify the response to take in a counter-petition seeking a marriage dissolution. Typically, courts grant the motions.

If you've questions about turning your legal separation proceedings into a divorce, consider consulting with a qualified attorney.

Taxes and Legal Separation

All debts in Phoenix, Arizona, including all taxes during your marriage, are community debts and both spouses are equally accountable for paying the debts.

Providing evidence that the debt is one party's sole debt can help overcome the assumption that the debt is a community debt. For instance, if your partner sells a house that they owned before your marriage leading to capital gains tax, the tax will be your partner's separate and sole tax obligation.

Effects of a Separation on Your Taxes

When you file a separation case in Arizona, the family law court will use community property law regarding tax debts.

A separation dismisses your marital community from the date you serve your spouse a Petition of Legal Separation provided your legal separation matter isn't dismissed before the court issues a Decree of Legal Separation.

Therefore, any form of tax, including income tax incurred by either party following the Petition of Legal Separation, is brought and served should be paid by the party incurring that debt.

However, there are exemptions to this rule. One exemption is income made by one partner before bringing the separation matter is paid once they serve their partner the Petition for Legal Separation.

The most effective way to determine whether tax obligations are separate and sole tax debt of your partner or community debts is when the entitlement to obtain the income happened irrespective of when you received it.

Filing Your State and Federal Tax Returns After and During Your Legal Separation

Any family law attorney will tell you that one of the most frequently asked questions is how to bring income tax returns after filing a separation case.

The ability to bring a joint income tax return as a couple depends on the date your final Decree of Legal Separation is granted. The Internal Revenue Authority considers you married provided the judge has not signed your Final Decree of Legal Separation and brought it with the court clerk.

Filing Your Tax Returns When You Have Pending Separation Proceedings

Although Arizona laws terminate the community once your spouse is served your Petition for Legal Separation, the federal income tax law still considers you married. Therefore, if you currently have a separation matter in Phoenix, you can file joint federal and state income tax returns to save on taxes.

Nonetheless, you can still bring it as "Married Filing Separately." In this case, you will pay more income tax because you lose the benefit of filing joint income tax returns.

Bringing Your Tax Returns Once Your Legal Separation Matter is Finalized

You are legally separated once the court signs the final Decree of Legal Separation and brings the decree with the court clerk. That means you cannot file your tax returns using a married individual status, regardless of bringing as "Married Filing Separately" or "Married Filing Jointly."

You lose your ability to bring a joint income tax return once the legal separation matter is decided.

You could still bring tax returns as "married" in other income tax seasons before the year you filed the Decree of Legal Separation.

Reversing Your Legal Separation

While a separation comes with many advantages, including filing joint income tax returns, it has disadvantages. If misrepresented, it may cost more than a divorce proceeding when you and your spouse choose to reconcile, resulting in expensive and unnecessary expenditures. Moreover, it could make it hard for the parties moving on, particularly if they want to remarry.

There are also cases where partners decide to live together and end their separation after undergoing the entire legal separation process. The process is called a reversal of legal separation. Although the process is straightforward, the couple should understand it and complete it appropriately.

Reversal of Legal Separation Process

Human beings are quick to decide based on emotions. Separation proceeding is not an exception, and most spouses find themselves in situations that aren't privy to after reflections. Reflections and second thoughts could result in the spouses wishing to reverse their action and live like before.

Just like most family law processes; the reversal of your legal separation has several steps, including:

  1. Agreement

Both you and your spouse should agree to the reversal of the separation agreement. It differs from divorce in that if one partner wants a divorce while the other separation, the divorce should be granted.

  1. Prepare a Motion to Vacate

You should notify the family court in which the separation agreement was granted and determined.

  1. Explain Your Situation

It would help if you informed the family court of the reasons why you are seeking the reversal. Your explanation must comprise how you've resolved your differences and indicate that the marriage has not been resolved. To successfully set aside the Decree of Legal Separation, you should demonstrate the basis per the Arizona Rules of Family Law Procedure.

You must have a skilled family law attorney analyze your motion and ensure it's well-composed.

Your petition should contain a form of order for the court to sign on with wording, like "this action is ordered vacated."

  1. File Your Motion

Once you are done completing your paperwork appropriately, file your motion in the family court where you brought the legal separation.

Things to Avoid Doing During Your Legal Separation

Discussed below some of the costly mistakes separating partners make during their legal separation.

  • Don't leave your marital home unless either you or the children are at risk. Leaving your matrimonial home could affect the claim to an interest in your home.
  • Do not be violent or threaten your spouse — Threatening to engage in or committing any violent conduct (psychological or physical) could affect the claim to your marital home and having access to and custody of your children.
  • Don't involve the children in your conflict — Avoid discussing the separation's details or arguing when your children are around. Also, avoid using your children as messengers between you and your partner.
  • Don't interfere with any established child-parent relationship — You must encourage access and a good relationship between your babies and the other parent unless there exists the risk of harm. Don't abandon the children. Instead, establish your intent to have access or custody.
  • Do not sell any property or try to change ownership on property that could be deemed marital property. It could affect your credibility in court.
  • Do not make any significant purchase, including buying a home or car, until you have signed a court order or separation agreement. Doing so might affect your financial responsibilities.
  • Do not agree to anything or sign documents without consulting with an attorney. You should understand your responsibilities and rights before negotiating a settlement with your partner. It helps you make an informed decision.
  • Avoid posting your differences on social media — Your spouse could use any information you post on social media against you. Also, making a disparaging comment about the partner could result in an awkward situation for mutual contacts, including your friends and children, when you require support.
  • Don't change your financial status quo —Abusing or depleting joint bank accounts is deemed immoral conduct, and the family law court could impose punitive measures against you.
  • Don't cut off your partner financially — If the spouse depends on you financially, make sure that you are reasonable when sharing resources. If the spouse gets spousal support or child support, the order could be backdated and force you to pay support for months before the order is made.

Frequently Asked Questions

Any experienced family law attorney will tell you that they have answered the following questions more than once.

  1. What is a Covenant Marriage?

Unlike a standard marriage, a covenant marriage comes with additional formalities and requirements. The marriage license shows the spouses' covenant choice. Before entering the covenant marriage, the spouses must undergo counseling. Since there should be grounds for separation, obtaining a legal separation is more complex than a standard separation.

  1. Can You Secretly Record Your Partner's Telephone Conversation?

Under Arizona Revised Statute 13-3005, it's legal to record a telephone conversation if either of the persons in the communication knows and has consented to your recording. In other words, you can consent to the recording of your phone conversations. However, it is unlawful to record a conversation between your partner and a third party when neither knows that you are recording the conversation.

  1. Does the Court Handle Child Custody Differently in Legal Separation and Divorce?

The goal in any child custody evaluation is determining your children's best interest, and the standard applies to all forms of marital interventions. If you cannot reach an agreement on how to divide parental responsibilities and rights, the judge will decide based on your ability to provide for your child.

  1. What is a Separation Agreement?

It is a legally binding contract that the judge or the couple can draft during the legal separation process. The agreement should include how the couple will split or share marital debts and assets, child visitation, child custody, and child or spousal support. Before signing your paperwork, you should agree on the terms. Should any of you disagree, the judge will determine the disputed issue.

When you have a physical document to refer to once the court issues the separation, it stops frivolous lawsuits that could later tie up the court's calendar.

  1. When Is It the Right Time to Hire a Family Law Attorney?

There are circumstances where you must hire a lawyer.

If you have a history of child abuse, sexual abuse, substance abuse, or domestic violence, consulting with a lawyer is the most effective method to protect yourself and your rights. If violence or power imbalance exists between spouses, negotiations are impossible. Hiring an attorney offers peace of mind knowing that you have got a knowledgeable person in your corner.

If your partner hires legal counsel, you should do the same. While it could feel like you could self-represent, when the other party has legal representation, you might walk away with an unfair deal. Consider hiring an experienced lawyer and level the playing field.

  1. How Do I Cope with Legal Separation?

Undergoing a separation is not easy. It might put you and your loved ones under financial and psychological stress. Preparing for the separation might assist reduce the emotional turmoil and ensure your rights are protected.

Here are practical tips to prepare for your legal separation:

  • Hire a qualified family law attorney you are comfortable with to discuss your financial matters and understand your goals.
  • Be sure what you want; if you aren't, consider talking with a clergy member or family therapist before making your decision.
  • Prepare a list of your debts and assets
  • Consider your child custody goals
  • Refrain from posting on social media
  • Prepare yourself financially before filing your legal separation.

  1. How Long Can Your Legal Separation Take?

The answer to this question is straightforward. You could be separated  for:

  • as long as you and your spouse wish, or
  • until the demise of any of the partners.

The demise of a spouse automatically terminates the marriage relationship without the other partner filing a divorce proceeding.

Moreover, you can terminate the legal separation if any of the parties brings a divorce petition and receives a divorce decree.

  1. How Do I Tell My Spouse that I Want a Legal Separation?

Before telling your partner that you want a separation, consider what you will say and where you'll have your discussion. Be calm. Speak your decision in a manner that leads to the least amount of emotional damage to you, your children, and your spouse.

Find a Knowledgeable Family Law Attorney Near Me

Deciding to file a legal separation is an unsettling and scary process. Before bringing, you should understand the process and make proper plans for all stages of your case. Your decisions can affect different aspects of life, including your place of residency, how you spend your money, your children, debts, and assets. At Phoenix Family Law Attorney, we help couples undergo challenging marital work toward an amicable agreement of the separation terms. We understand that your separation might not result in a divorce, and you might require some time apart. Consequently, we are dedicated to ensuring the transition to the new phase of life is smooth.

Contact us today at 888-888-8888 to speak with our skilled and compassionate lawyers. We can guide and stand with you throughout the entire process.