The Similarities and Differences between Legal Separation and Divorce

Legal separation and divorce in Arizona are very similar, so the decision as to which to pursue can be a difficult one. Regardless of whether the parties will be legally separated or are getting divorced, the former “marital community” that existed between the parties is severed. In both cases, Judges will issue orders regarding asset division, debt allocation, parenting and spousal maintenance; thus the settlement agreement in a legal separation is almost identical to a divorce settlement agreement. The main difference between legal separation and divorce is that when a legal separation is finalized, the parties do not revert to “single person” status. So, for example, neither party can remarry, nor may the parties continue to file taxes jointly. A legal separation can be converted to a divorce at any time, either before or after the final consent decree is signed by the judge (with understanding that any post-decree request to convert might be rejected if it isn’t filed within several months of the final decree).

The reasons for divorce and legal separation vary; the decision to pursue a legal separation can be motivated by different reasons. Sometimes, it is an emotional or religious reason. For example, the parties may not be emotionally ready for a divorce, or may still hope to reconcile. Or the parties’ religion may frown upon divorce, or condone it only under certain circumstances. In some limited situations, health insurers will allow a legally separated spouse, but not a divorced spouse, to remain on the other spouse’s health insurance. So, this may be a consideration if one spouse has a physical condition or chronic illness and the other spouse is willing to continue health insurance coverage for their benefit.
Coping with divorce or legal separation presents similar, if not identical, challenges for the parties as well as their children. Assets (such as retirement accounts and equity in the marital home) must be divided between parties and debts must be allocated. Community property laws in Arizona govern these financial decisions in both legal separation and divorce. Decisions must also be made by the divorcing or legally separating parties regarding spousal maintenance and parenting.

In regards to parenting, parties make decisions regarding time-sharing and legal decision making (formerly called “legal custody”), and help children going through a divorce or legal separation to adjust to the changes. Helping children cope with divorce or legal separation can be challenging. For example, new transitions and adjustments to a new family structure that occur during divorce can be difficult for children. The impact of legal separation on children, just like the impact of divorce on children, depends in large part upon the parents’ ability to communicate in a health way with one another and their children. For this reason, children of divorce or legal separation benefit greatly from a divorce being as amicable as possible. Parties who work with a divorce mediator will likely be able to resolve their issues in a much more amicable, not to mention much more cost effective manner, than in litigation with adversarial lawyers. A knowledgeable, professional mediator with expertise in both law and psychology will provide legal information to both parties so informed decisions can be made. Parties will be able to talk through the difficult parenting issues of child support and time sharing without entering a “custody battle” in which children are put in the middle of a hostile situation. This will greatly decrease the negative effects of divorce on children, and help children adjust to the changes inherent in most divorces and legal separations.

By, Tamara Hirsch, JD, LCSW

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