[Updated 5/24/2019] This is one of the most common questions I receive as a Phoenix Divorce Mediator. There tends to be some general confusion around the difference between a Legal Separation and a Divorce and the reasons for choosing one versus the other.
In Arizona, the process for Legal Separation and the process for Divorce are almost identical. The issues of division of assets and debts, parenting plans, child support, and spousal maintenance are addressed in basically the same manner according to the same state laws. The only real difference is that, after a Legal Separation, you are still married (and, thus cannot remarry), but after a Dissolution (Divorce), you are restored to your status as a single person (and can remarry).
So why would couples choose a Legal Separation instead of Divorce?
In my experience working with divorce mediation couples, I have found the following five (it used to be four, but a new one recently has been requested) situations to be the main reasons couples choose to pursue a Legal Separation instead of a Divorce:
- Religious Beliefs. Some couples feel they cannot or should not divorce pursuant to their faith.
- Health Insurance. Most insurance plans will continue to cover legally separated spouses, which can provide continuity of health care coverage under their existing insurance plan. In a divorce, on the other hand, a spouse must usually (1) obtain new separate health insurance coverage, which may not be as cost-effective or may not provide similar coverage or (2) use COBRA to stay on the existing plan for up to an additional 3 years, which may be costly.
- Emotional. For some of the mediation clients with whom I work, one or both of them may not be ready to take the step of filing for a Divorce or they may be still working on reconciliation.
- Protection from Financial Liability. Because a Legal Separation essentially severs the community aspect of assets and debts, some couples wish to insulate one of them from liability for the other’s future debts, personal and business.
- Social Security Benefits [New]. Recently, several couples who intend to eventually obtain a divorce, have requested a legal separation so that they can meet the requirement of a 10 year marriage in order to elect social security benefits later.
Because the process is so similar to the Divorce process, the time-frame for obtaining a Legal Separation is typically the same as for a Divorce. Here is a visual of the timeline: https://affordablemediationaz.com/mediated-divorce-timeline/
Don’t worry if you are not sure which process is right for you. You have time to make that decision as you move forward with the mediation process and you can change your mind before your Decree is finalized. Your Divorce Mediator can guide you through the decision and help with the paperwork and process so you can feel comfortable with your ultimate decision.
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