It is important that you know there are four different ways to separate and choosing the best for you and your family is extremely important and can impact property rights. This blog is a brief overview of the four different ways to separate, however, it is important to understand that every state has their own marital and property rules that will impact you depending upon where you live. Contact WHYmediate at 480-777-5500 with any questions you have about divorce, separation or family law.(See WHYmediation.com)
Trial Separation:When a couple lives apart for a test period, deciding whether or not to separate permanently, it’s called a trial separation. Even if the spouses don’t get back together, the assets they accumulate and debts they incur during the trial period are usually considered marital property unless they are explicitly titled otherwise and fit the exception to community property law, such as a gift or inheritance. This type of separation is usually not legally recognized, but is instead a specific period in a couple’s relationship. Recently, a couple had been separated for over five years and they decided to divorce. The dividing day for their accounts was not when they separated five years ago, but the day the other spouse was served with the divorce papers. That is the law of Arizona and it is important you know this in order to plan when you want your account balances determined for their division.
Living Apart: Spouses who no longer reside in the same dwelling are said to be living apart. In some states, living apart without intending to reunite changes the spouses’ property rights. For example, some states consider property accumulated and debts incurred while living apart to be the separate property or debt of the person who accumulated or incurred it. In other states, property is joint unless and until a divorce complaint is filed in court. In Arizona, living apart only counts after the case has been initiated with a Petition for Dissolution of Marriage and has been served upon the other spouse. Thus, for you Arizona residents, do not count on your living apart months or years to really help you in dividing your assets until you actually file for divorce.
Permanent Separation: When a couple decides to permanently split up, yet not divorce, is most often called a “permanent separation.” Do not confuse what other states identify as marital or separate assets if you have your own separation, and yet you have not obtained a legal separation from the court. In Arizona, your marital estate is considered “intact,” even if you live apart for many years in a permanent separation. If you have received support from your spouse for many years, this amount can be used as evidence to support your claim for spousal support if you ever do file for a divorce or legal separation. Remember that debts you or your spouse incur after separation are still assigned to the martial community and you may be liable for debts that you did not approve or agree to.
In Arizona, the divorce rate may be higher than other states because to truly protect your own separate estate, you must file and serve either a Petition for Dissolution of Marriage or a Legal Separation of Marriage.
Legal Separation: In Arizona, a legal separation begins when one spouse files a Petition for Legal Separation of Marriage and it eventually results in a judgment decree separating all of your assets and debts and you are not free to remarry. The decree from the court will include such issues as your division of property, spousal support, child support, parenting time and legal decision making for the children. You are still married and not free to remarry, but your estate has been completely divided and you no longer have financial liability for the other parties’ actions. This is highly recommended when one party has a large lawsuit against him or her, is a spend thrift, gambling or other addict and yet the parties love each other want to remain married only to each other. When people begin to understand that an Arizona Legal Separation is so close to a divorce, they usually decide to simply divorce.
It is beneficial to workwith a mediator who can guide you to the proper choice that will be unique to your individual circumstances.
At WHYmediate? Mediation Services, find out if mediation can allow you to resolve your Marital Conflicts in a positive collaborate environment that covers how to deal with all scenarios that would best serve you.