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Separation vs. Divorce

Torn between filing for legal separation or divorce? Perhaps it would be helpful to know the similarities and differences between the two, at least in Arizona.

The first and most obvious difference between the two is that if you're legally separated, you're still technically married. Of course, this means you can't remarry if you're only legally separated. There are circumstances where a legal separation can be useful however. For instance, you or your spouse can continue to cover the other on your medical insurance. Also, for tax purposes, you can still file jointly if you're legally separated, whereas you won't be able to once you're divorced.

The procedure for filing for legal separation and divorce are exactly the same in Arizona. The process begins with the filing of a petition and service on the opposing party. In addition, the 60-day grace period applies in both cases, meaning you can't be legally separated or divorced for at least 60 days after the other party's been served.

In addition, the community property and debts acquired during the marriage will need to be divided in both cases. The difference, however, is that if the parties continue to acquire property after a legal separation, that property may be considered community property and would need to be divided if and when the parties ever divorce.

Finally, a common misconception is that if you're legally separated, you can simply apply to the court to "convert" it to a divorce. Unfortunately, this is not the case. Instead, you would be required to file a petition for divorce and essentially go through the entire process again. Therefore, before you file for legal separation or divorce, it would make sense to speak with an attorney to find out which option is better suited to your individual circumstances.

If you have questions about legal separation or divorce, or would like to speak with an attorney about a family law matter, give us a call at 623-536-5500. Thank you.

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