Understanding Legal Separation vs. Divorce: Pros and Cons
When a marriage reaches a difficult crossroads, knowing what to do next isn’t always easy. You may know that you cannot continue in the same way, but the idea of divorce feels incredibly final.
It is a time filled with complex emotions and pressing questions. In Arizona, you have multiple options for formally changing your marital status. Beyond divorce, there is also legal separation.
A Phoenix legal separation attorney can help you explore whether this path aligns with your needs and goals. It’s not about choosing a “better” option but about finding the right legal tool for your unique circumstances. It is about moving forward with clarity and intention, whether that means creating space for potential reconciliation or beginning the process of building a new, independent life.
What Is the Main Difference Between Legal Separation and Divorce?
At their core, the distinction is simple but profound. A divorce legally ends the marriage. A legal separation restructures your lives as a married couple, but the marriage remains legally intact.
Think of it this way: a divorce is the complete dissolution of the legal marriage contract. Once the judge signs the final Decree of Dissolution, you are single again and free to remarry.
A legal separation, on the other hand, is like a court-ordered restructuring of your partnership. You live separately and are financially independent, but you are still legally married to one another.
Here is a breakdown of the key difference:
- Divorce (Dissolution of Marriage): This permanently terminates the marital relationship. You are no longer spouses in the eyes of the law.
- Legal Separation: This creates a legal framework for you to live separate lives while remaining married. You cannot remarry unless you later convert the separation into a divorce.
The legal process for getting to either outcome is surprisingly similar. You still have to address all the same major issues, like dividing property and debt, creating a parenting plan for your children, and determining support.
The final document is just called a Decree of Legal Separation instead of a Decree of Dissolution.
Why Would Someone Choose Legal Separation? The Potential Advantages
If the process is so similar, why would anyone choose legal separation? People opt for this path for a variety of deeply personal and practical reasons. It provides the structure of a divorce without the finality.
- Maintaining Health Insurance Benefits: This is one of the most common practical reasons. Many employer-sponsored health insurance plans allow a spouse to remain covered during a legal separation, whereas a divorce is a qualifying life event that terminates coverage.
Check the specific terms of the insurance policy, as not all plans allow this. For someone with significant health needs, this can be a crucial factor.
- Religious or Moral Beliefs: For individuals whose religious or moral convictions are against divorce, legal separation offers a way to formally separate and protect their financial interests without violating their beliefs.
It allows them to live apart and establish legal boundaries while honoring their commitment to the institution of marriage.
- The Possibility of Reconciliation: Some couples are not entirely sure they want to end their marriage. A legal separation can act as a structured trial period.
It gives the couple space and time to work on their issues, perhaps with counseling, while their finances and parental responsibilities are clearly and legally defined.
This removes the day-to-day financial arguments and allows them to focus on the relationship.
- Meeting the 10-Year Marriage Requirement for Benefits: Certain federal benefits, like specific Social Security and military benefits, require a marriage to have lasted at least 10 years.
If a couple is close to that milestone, they might choose a legal separation to cross the 10 year mark, allowing one spouse to potentially claim benefits on the other’s record in the future.
These advantages are highly specific to each couple’s situation. What is a compelling reason for one family might not be relevant to another.
What Are the Downsides of Legal Separation? The Potential Disadvantages
While legal separation has its benefits, it also comes with significant drawbacks that you must consider carefully. For many, the lack of finality can create more problems than it solves.
- You Cannot Remarry: This is the most significant limitation. Because you are still legally married, neither you nor your spouse can marry someone else. If you meet a new partner and want to move forward, you would first have to go back to court to convert your legal separation into a divorce.
- Emotional Entanglement: A legal separation does not provide the same clean break as a divorce. Knowing you are still legally tied to your spouse can make it difficult to move on emotionally and build a new, independent identity. It can sometimes feel like being in a state of limbo.
- The Process is Just as Complex: A common misconception is that a legal separation is somehow easier or cheaper than a divorce. This is not true. You must go through the same steps of financial disclosure, asset valuation, property division, and creating custody plans. The legal work and potential for conflict are virtually identical.
- Potential for Two Legal Cases: If you decide later that you want a divorce, you have to initiate another legal action. While converting a separation to a divorce is usually straightforward, it is still an additional step that requires time and resources. You are essentially paying for the same process twice.
For these reasons, many people decide that if they go through the entire legal process of separating their lives, they might as well get the finality and closure of a divorce.
The Legal Process in Maricopa County
Whether you are walking the path toward legal separation or divorce, the journey through the Arizona legal system looks very much the same. You must file a formal petition with the Maricopa County Superior Court to begin the process.
This petition officially asks the court to intervene and issue orders regarding the key aspects of your shared life.
These include:
- Division of Property and Debt: Arizona is a community property state. This means that nearly all assets and debts acquired during the marriage are considered to belong to both spouses equally. The court’s job in both a legal separation and a divorce is to divide the community property fairly and equitably.
- Child Custody (Legal Decision-Making and Parenting Time): If you have minor children, you must create a comprehensive parenting plan. This plan will outline legal decision-making (who makes major decisions about health, education, and welfare) and a parenting time schedule that is in the children’s best interests.
- Child Support and Spousal Maintenance: The court will calculate child support based on state guidelines. It may also address spousal maintenance, which is financial support paid from one spouse to the other, if one party has a demonstrated need and the other has the ability to pay.
An experienced family law attorney can guide you through each of these steps, ensuring the paperwork is filed correctly and that your rights and interests are protected throughout the negotiations or court proceedings.
An Advocate to Help You Find Your Way
Deciding between legal separation and divorce is deeply personal. It requires a careful examination of one’s finances, family structure, beliefs, and hopes for the future.
You do not have to make this decision in a vacuum. Working with a dedicated family law attorney can give you the clarity and confidence you need. An attorney acts as your guide and advocate, helping you to:
- Fully understand the long-term legal and financial consequences of each option.
- Investigate specific issues, like checking the fine print of your health insurance policy.
- Negotiate a fair and comprehensive settlement agreement that covers all aspects of your separation.
- Represent your interests powerfully in court if a mutual agreement cannot be reached.
This support can transform a period of uncertainty into a process of empowerment, allowing you to choose the path that truly serves you and your family best.
FAQ
Can a legal separation be changed to a divorce later?
Yes. Either spouse can petition the court to convert a Decree of Legal Separation into a Decree of Dissolution of Marriage. In Arizona, this can typically be done any time after the legal separation has been finalized. The process is usually much simpler than the initial separation case.
Do my spouse and I both have to agree to a legal separation?
No. If one spouse files for legal separation, the other spouse can respond by requesting that the court grant a divorce instead. Because either party has the right to a divorce, a judge will almost always grant the divorce if one spouse requests it.
How long does a legal separation last?
A legal separation is indefinite. It does not expire. It remains in effect until one of the spouses either petitions the court to convert it into a divorce or petitions to dismiss the separation and reconcile.
What happens to our debt in a legal separation?
Debts are divided in a legal separation just as they are in a divorce. The court will identify all community debts (those incurred during the marriage) and assign responsibility for paying them in the Decree of Legal Separation. This protects you from being held liable for new debts your spouse incurs after the separation.
Can we still file taxes together if we are legally separated?
This is a complex question that requires advice from a tax professional. Generally, for federal tax purposes, a couple with a Decree of Legal Separation is considered unmarried and cannot file a joint tax return. However, the rules can be nuanced, so professional tax guidance is essential.
Choosing Your Next Chapter
The decision to legally separate or divorce is the first of many steps in shaping your new future. There is no single “right” answer, only the one that is right for you.
It requires honest self-reflection and a clear understanding of the legal landscape. Taking the time to explore your options is a sign of strength and a commitment to building a life of stability and purpose, even when things are difficult.
An experienced family lawyer at the Law Office of Cosmas Onyia, understands that this is more than just a legal case; it is your life. Inspired by a deep belief in the power of resilience to overcome any obstacle, we are dedicated to providing strong, clear-headed advocacy for our clients.
We will stand with you, ensuring you have the information and support needed to navigate this transition with dignity. To discuss your situation in confidence, please call us at (602) 265-5200.
