If you are considering a separation agreement in Arizona, consider talking to a lawyer. Once you sign a separation agreement (even before divorce) your agreement can be binding against you. Your separation agreement in Arizona just has to be in writing, and may not even have to be signed by you! Be careful about what you agree to since the law is so technical.
Separation agreements can be created in collaborative law cases while you try to decide if you will divorce. If reconciliation is your goal, our firm has had several marriages reconcile in our office using collaborative law.
What Are Separation Agreements In Arizona?
Occasionally married couples choose to separate, either in the prospect of divorce, giving one or each of the parties “some space,” or living away from each other for a while in the hope of dealing with their feelings and potentially reconciling. Under Arizona law, couples that are married can stay married but can enter into a legal contract controlling their financial affairs –handling of any debt, property, or even support. This is known as a separation agreement and is moderated by A.R.S. § 25-317. Recently the Court of Appeals ruled that pertaining to the statute, for the separation agreements to be enforceable, its terms are required to be just and fair.
What is the Purpose of a Separation Agreement?
Separation Agreements purpose is to help amicably resolve disputes among married parties in anticipation of legal separation or divorce. They provide couples the opportunity to resolve possible areas of disagreement, like the division of assets, support, or any debt incurred, in a casual and fair manner. Therefore, a married couple can agree to their own separation terms.
Separation agreements are great tools to resolve possible issues that might come up in anticipation of divorce or parties agreeing to live away from each other for a while. But the outcome of this case and A.R.S. § 25-317 means that there needs to be full disclosure (full acknowledgment of the property involved) – and a clear recognition of the separate and community property and debt current at the time. Additionally, the terms of the agreement are required to be concise and clear, giving thought to a “meeting of the minds” pertaining to the terms of the separation agreement. Giving full disclosure of all property and debt, separate and community, and a clear-cut agreement pertaining to how all property is to be managed and divided, a separation agreement needs to be defended by the courts as long as it is just and fair.
A.R.S. § 25-317 Separation Agreement
The Separation Agreement Statute, A.R.S. § 25-317, says:
A. To promote amicable settlement of disputes between parties to a marriage attendant on their separation or the dissolution of their marriage, the parties may enter into a written separation agreement containing provisions for disposition of any property owned by either of them, maintenance of either of them, and support, custody and parenting time of their children. A separation agreement may provide that its maintenance terms shall not be modified.
B. In a proceeding for dissolution of marriage or for legal separation, the terms of the separation agreement, except those providing for the support, custody and parenting time of children, are binding on the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the separation agreement is unfair.
C. If the court finds the separation agreement unfair as to the disposition of property or maintenance, it may request the parties to submit a revised separation agreement or may make orders for the disposition of property or maintenance.
D. If the court finds that the separation agreement is not unfair as to disposition of property or maintenance and that it is reasonable as to support, custody and parenting time of children, the separation agreement shall be set forth or incorporated by reference in the decree of dissolution or legal separation and the parties shall be ordered to perform them. If the separation agreement provides that its terms shall not be set forth in the decree, the decree shall identify the separation agreement as incorporated by reference and state that the court has found the terms as to property disposition and maintenance not unfair and the terms as to support, custody and parenting time of children reasonable.
E. Terms of the agreement set forth or incorporated by reference in the decree are enforceable by all remedies available for enforcement of a judgment, including contempt.
F. Except for terms concerning the maintenance of either party and the support, custody or parenting time of children, entry of the decree shall thereafter preclude the modification of the terms of the decree and the property settlement agreement, if any, set forth or incorporated by reference.
G. Notwithstanding subsection F, entry of a decree that sets forth or incorporates by reference a separation agreement that provides that its maintenance terms shall not be modified prevents the court from exercising jurisdiction to modify the decree and the separation agreement regarding maintenance, including a decree entered before July 20, 1996.
At Moshier Law, we find that people have the best chance of reaching a separation agreement through collaborative law.
For more information about spousal maintenance and separation agreements, check out our article on spousal maintenance and the 2018 tax deduction.
For more information about how to reach a separation agreement through collaborative law, read about collaborative law here and for information about how to get your spouse to engage in the collaborative process, click here. Learn more about A.R.S. § 25-317.
Legal Separation Lawyers in Scottsdale & Phoenix, Arizona
Moshier Family Law is your first choice for when you need the best legal separation lawyers in Scottsdale and Phoenix, Arizona. Our knowledgeable Arizona family law attorneys will work with you to get you the best possible outcome of your divorce. We are a you can trust to represent you throughout the process, so you move on with your life. Call us today for an initial consultation!