Before a couple chooses to get married, they may be cautioned by friends or family members that “fifty percent of marriages end in divorce.” Foreboding? Yes. True? Not necessarily. First, there are a lot of demographic factors that contribute to the decision to get married or divorced, and this sweeping statistic should not be broadly applied to everyone. Second, that statistic applies to individuals who get married (and then divorced) multiple times. Third, and especially relevant to this article, is that some couples intentionally opt for legal separation rather than divorce. As this is not a divorce, it does not contribute to the overarching statistic but still is an important and distinct process. Couples may choose this option when they are considering a divorce, need some separation to cool off but want to have established child custody arrangements, or simply want to end the relationship but not with a divorce. So no, your marriage is not necessarily doomed to be over before it begins.
Many couples who are unsure of whether they want to be divorced choose legal separation as a way to test the feeling of a divorce but on a trial basis. Others prefer a legal separation as it allows them to avoid any social consequences of a divorce, or if their religious beliefs make a divorce more difficult, if not impossible. Choosing to move out of a shared residence or spend a short period apart may be recommended as a way to “test” how a living arrangement might improve the relationship before making more significant steps and involving attorneys and legal processes. A true legal separation only occurs when a party files for a court-ordered legal separation, which initiates a change in the parties’ legal status, triggers a temporary decision as to child-related issues (legal decision-making and parenting time) and begins the process of property division.
Legal separations may be less common today, but they were relatively popular in the days before the Affordable Care Act (aka Obamacare). Before its enactment in 2010, many chose to legally separate rather than divorce as a means of keeping health insurance policies intact. However, now that Medicaid is available to sign up for post-divorce, even for those with pre-existing conditions, issues that justified staying legally married to a spouse as a means of maintaining health insurance coverage are less concerning. Because of this policy shift, spouses may be more motivated to go through a full divorce process, rather than a legal separation. Now, the rate of legal separation petitions being converted into full divorces (in Arizona, a dissolution of marriage) is extremely high. However, the reasons for choosing a legal separation over a divorce—religion, to avoid social stigma, personal preference, or to remain legally married until children legally emancipate—remain.
The most notable distinction between the impact of a legal separation versus a divorce petition is that neither party in a legal separation can remarry, as their status as a legally married couple is not changed. Everything else associated with a divorce – Child Support, Spousal Maintenance, division of assets—is fair game. Of course, one aspect of every divorce petition is the statement that a marriage is “irretrievably broken with no hope of reconciliation.” If this is the case, both parties involved in a legal separation must carefully consider whether legal separation is a sustainable option for their lifestyle and future goals.
Leslie A. Satterlee is a partner at Woodnick Law and has been practicing family law exclusively since graduating cum laude from ASU’s Sandra Day O’Connor College of Law. Her practice involves complex asset driven divorce matters.
Mallory Scott is a 2L at the Sandra Day O’Connor College of Law at Arizona State University, and law clerk at Woodnick Law PLLC. While working as a clerk during the summer, she has the opportunity to work on real-world litigation, but also research topics of interest relating to the future practice of law. The practice values exploration into collateral topics that relate to families, especially their relevance to popular culture and media.