If you’re facing marital challenges, it’s important to know your legal options for redefining or ending your relationship. Legal separation and divorce are two main paths you can take, each with its own legal and personal impacts. At McMurdie Law & Mediation in Tempe, AZ, we’ve been guiding families through these decisions for over twenty years. We’re here to help you weigh the pros and cons of legal separation versus divorce, ensuring you find the best route for your specific situation. Let’s explore these options together and find a path that feels right for you.

middle aged man sitting by suitcase contemplating Legal Separation and DivorceDefining Legal Separation and Divorce in Arizona

Before we dive into the differences, let’s clarify what each term means. A legal separation means that you are not free to marry another person because you still married to your spouse, however the marital estate is divided as though you are divorced. With a divorce, your marriage is dissolved entirely, leaving both of you single and able to remarry if you choose. The asset and debt division though is the same as a legal separation.

Let’s take a closer look at these options and discuss some important factors to consider when deciding which path might be right for you.

Financial Considerations and Obligations

One of the primary distinctions between legal separation and divorce centers around finances and asset division. In both cases, couples must reach agreements on property division, spousal support, and child support. However, legal separation offers unique financial benefits that might be appealing to some couples:

  1. Debt Liability: Since legal separation keeps the marriage intact, spouses might still be held liable for their partner’s newly incurred debts, and this is situational and on a case by case basis. Arizona holds that when you are served with Legal Separation or Divorce papers (Petition) that the estate is divided on that date. However, divorce creates a clear separation of financial responsibilities, thereby absolving either party from any debt acquired by the other post-divorce.
  1. Access to Benefits: Unlike divorce, legal separation can allow couples to retain access to certain joint benefits such as healthcare (although this becoming more rare) and social security benefits. This aspect can be a deciding factor for spouses who wish to maintain specific coverage or financial benefits.
  1. Retirement and Pensions: Legal separation allows couples to retain access to each other’s retirement and pension benefits, while divorce may require dividing these benefits or forfeiting portions of these assets to the other spouse.
  1. Tax Implications: Legally separated couples may still file joint tax returns, possibly yielding better tax advantages. Divorced couples are required to file taxes separately, which might result in higher tax liability.

couple contemplating Legal Separation and Divorce while kids run around.Child Custody and Parenting Time

Similar to divorce proceedings, legal separation necessitates decisions on both legal decision-making and physical custody of children, as well as parenting time. While both options require that the best interests of the child are prioritized, these child-centered decisions can be modified upon subsequent divorce proceedings. In either case, parents must construct a parenting plan detailing crucial elements such as decision-making rights, parenting time schedules, and dispute-resolution methods, all of which should be aligned with the child’s needs and welfare.

Marriage Validity and Reconciliation

A key differentiator between legal separation versus divorce lies in marriage validity. Legal separation allows couples to remain legally married while living separate lives and potentially pursuing reconciliation. This status can be particularly beneficial to couples who consider their marital strife as temporary or hope to preserve their marriage for religious or cultural reasons.

Conversely, divorce is a permanent dissolution of the marital relationship, freeing both spouses to pursue new relationships and, if desired, remarry. Divorce represents a final decision to end the union and does not afford the same opportunity for reconciliation as legal separation.  It is notable that the rate or remarriage to previously divorced spouses is higher than you would think.

Ease of Process and Timeline

It’s important to weigh the ease of process and timeline when choosing your approach. In Arizona, the procedure for obtaining a legal separation closely mirrors that of a divorce, encompassing similar steps such as filing a petition with the court, disclosing financial information, and settling issues related to property division and child custody.  Most of the time, a legal separation will proceed to a divorce in time.

Arizona law requires a 60-day “cooling off” period following the filing of a divorce petition, allowing time for possible reconciliation before the proceedings are finalized. Legal separation does not necessitate a waiting period, providing a more expedient resolution for spouses seeking swift separation. However, given that legal separation does not dissolve the marriage, a couple may need to undergo additional legal proceedings should they later elect to divorce.

Effect on Prenuptial and Postnuptial Agreements

Prenuptial and postnuptial agreements, which outline a couple’s asset division upon marital dissolution, can significantly impact the outcome of legal separation or divorce. Both types of agreement typically encompass provisions regarding property, spousal support, and other financial matters. Couples should scrutinize their agreements and seek legal counsel to determine how their arrangement may influence the process and ramifications of legal separation or divorce.

Seeking Legal Guidance: Legal Separation or Divorce

Deciding between legal separation and divorce requires a thorough understanding of the unique circumstances surrounding each couple’s situation. McMurdie Law & Mediation, with its extensive experience in family law matters, can provide the necessary legal guidance to help analyze the specific needs, priorities, and concerns of each client to advise them on the most advantageous choice between legal separation versus divorce. Both options carry significant consequences, and consulting with an experienced professional is crucial when seeking the most beneficial outcome for your family during this challenging time.

Begin Your Journey with McMurdie Law & Mediation

Making the critical decision of which approach is right for you requires a trusted legal partner to guide you through the complexities and nuances of your unique situation. At McMurdie Law & Mediation, we understand the complex challenges accompanying these choices, and we are here to provide the expertise and support you need. With three decades of experience serving clients in Tempe, AZ and surrounding areas, we prioritize understanding your priorities and concerns to recommend the most appropriate course of action.

Take the first step towards a brighter future for you and your family by contacting McMurdie Law & Mediation today at (480) 777-5500 for a consultation.