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You can file for an Arizona Legal Separation in this state if you want to live a separate life from your spouse. You both need to be residents of Arizona to file this petition (must have established a residence at least 90 days before filing – Arizona Statutes – Title 12 – Chapters: 401 and Title 25 – Chapters: 312, 329). The Legal Separation will separate the property and debts of the parties so you will no longer be legally responsible for your spouse, and a Legal Separation decides child custody, visitation schedules and child support issues.
Legally you will still be married, and will need a divorce (dissolution) in order to be considered single, or to be able to marry again. A marriage separation is frequently pursued when one of the parties wants to stay married for religious reasons, wants the advantage of deductibility of spousal support payments for income tax reasons, wants to maintain various insurance coverage’s, or does not want to wait the state statutory waiting period to be divorced.
If a legal separation has been granted, the family court will make further orders for the support and maintenance of either spouse and for the support, maintenance, and education of minor children, by either spouse, or out of the property of either spouse, as the court deems appropriate. Filing a legal separation when you know there will ultimately be a final dissolution will only add to your legal expense, however. In cases like this, a legal separation should be bypassed in favor of a final divorce petition.
Legal separation – A court in this state will enter a decree of legal separation if it finds all of the following:
- That at least one of the parties was a legal resident of this state at the time the action began or was stationed in this state while a member of the armed services.
- The marriage is irretrievably broken or one or both parties desire to live separately and apart from the other.
- That the other party does not object to a decree of legal separation
- If applicable, the court has considered, approved or made provisions for child custody, the support of any natural or adopted child common to the spouses entitled to support, the maintenance of either spouse and the disposition of the property.
In an action for legal separation, the court will issue a preliminary injunction directed at both parties, preventing them from transferring, encumbering, concealing, selling or otherwise disposing of any of the joint, common or community property of the parties except if related to the usual course of business without the written consent of the parties or the permission of the court.
Further, they are prevented from:
- Molesting, harassing, disturbing the peace or assaulting the other spouse
- Removing any child of the parties whose home state is Arizona from the jurisdiction of the court without prior written permission from the court.
- Removing the child from any existing insurance coverage
- The parties may enter into a written separation agreement containing provisions for the support custody and parenting time of children, disposition of any property owned by them or maintenance of either of them
- If a submitted separation agreement is found to be unfair as to the division of property or maintenance, the court can request the parties submit a revised separation agreement or make orders for the disposition of property or maintenance
- If a submitted separation agreement is found to be fair as to disposition of property or maintenance, and that it is reasonable as to support, custody and parenting time of children, the court may incorporate the agreement in the decree for dissolution
- Disposition of property – the court will assign separate property to the owner of that property, and then divide the community, joint tenancy and other property held in common equitably although not necessarily equally.
Consent decree – a legal separation or dissolution can be finalized without a trial if both parties can agree to all terms of the separation or dissolution with respect to child support, child custody, alimony (spousal support) if applicable, and the division of property and debt. The consent decree is a court order that can end the marriage when there is agreement on all issues.
At least one of the parties to the action for dissolution of marriage must have established residency in the State of Arizona for at least ninety (90) days prior the filing of the action.
[Based on Arizona Revised Statutes; §25-313 and 317]
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