Divorce is a major life transition that affects the entire family. The life altering process often impacts extended family and friends too. The deep and far reaching fall out of divorce makes it a decision that is deliberated heavily. For some couples considering divorce, a legal separation can be a useful way to gain perspective on their marital issues and test the waters before taking a step which has profound consequences. For spouses reluctant tear apart a family if there might still be a chance at reconciliation, a separation can be an ideal option. Couples who know their differences are irreconcilable but need some time to deal with the many changes that divorce brings can effectively utilize a legal separation to tend to the overwhelming changes that starting over demands. Couples who want to consider legally separating as an option need to be informed of the legal ins and outs. While the laws of separation are governed by state, and thereby vary by state, there are some basics.

Many people are unaware that some states require a period of “separation”, or living apart, before a legal divorce can be filed. The rationale is that divorce is often fueled by intense and negative emotions that can cloud rational thought. Especially when a marriage involves children, decisions need to be founded in the logical best interests of the kids and family unit.  Should the couple make the decision to divorce after a separation, it is often a transitionary first step that gives kids time to adapt, versus a quick split which is jarring and disorientating.

Trial Separation

There are two types of separation. A trial separation is distinct from a legal separation. A trial separation is an informal agreement that does not involve either lawyers or a judge. For couples whose relationship is civil, this can be a good option.  Let’s take a look at the benefits and drawbacks of trial separation.

Benefits of Trial Separation

  1. It provides some time and space to gain perspective and clarity on the issues in the marriage. Once couples can calm down and be introspective without the immediate need to respond emotionally to every slight or frustration, they can sometimes come to realizations that were impossible to see when they were always in one another’s faces and space. In this instance, a trial separation can be a marriage’s saving grace, rather than a first step toward divorce.
  2. For couples who come to realize there is no hope of reconciliation, the lack of flaring emotions during this introspective period can lead to a more rational, amicable split.
  3. Since this is not a legal agreement there are no legal expenses. When two couples are able to agree on the terms of a trial separation then lawyer fees are spared.
  4. Being single again can be an enticing fantasy. When the reality of bachelor life sets in—single parenting, loneliness, the frustrations (and expense) of dating, the financial burden of two households—it can be a valuable lesson that the grass in not greener on the other side of street. It’s greener where you water it.

Drawbacks of Trial Separation:

  1. Financial obligations are still shared during a trial separation. If your spouse heads to Vegas with her girlfriends and goes on a bender, her losing streak is now your financial burden too. If she decides to go ahead with that plastic surgery she’s been thinking about, yes, you’re on the hook for it. Any debt incurred during a trial separation is shared.
  2. On the flip side, if you should buy a winning lottery ticket or get a huge commission check during this time, she is still entitled to half.
  3. While a trial separation can be an effective cool down period and offer the opportunity for serious self-reflection, it does not guarantee a solution to the problems that lead to the separation in the first place. Fixing the problems is an entirely different ball game than identifying and coming to terms with them. If couples are not willing to work on the issues, then all the time and wisdom in the world won’t help. Some couples may need professional help to learn new strategies to communicate better and to prevent them from falling back into the same destructive habits and patterns. A refusal to get the help they need will keep them stuck in strife.

Legal Separation

A Legal separation is a legally binding contract between spouses that decide to live separately for a period of time. The agreement outlines issues such as finances (who pays which bills), child custody, who will live where, and how long the separation will continue. The terms vary by couple, but most attorneys will recommend clients resolve issues such as the division of assets and debt, spousal support, child support, and visitation to cover all their legal and financial liabilities. If you decide to live apart from your wife, everything that is not included in the contract can put you at risk for actions taken without your knowledge or consent. In a worst-case scenario, you and your wife’s separation can sour and you file for divorce only to find out she has spent a hefty amount of the marital assets and you are left in financial ruins.

If you believe that talking it over will suffice, you are mistaken. To be protected its best to be detailed about terms. Who will pay which portion of shared bills and credit cards? How much will you and your wife each pay for household expenses on the main residence where your kids reside? Who will cover educational and other expenses for the kids? These are a few of the many financial issues that will come up during separation. By negotiating the ins and outs it not only protects you during the separation, which may last months or even years, but if you decide to divorce it can serve as a foundation for your divorce agreement.

Couples may opt to separate for many reasons. Their marriage may be so toxic they are unable to live together for a time. Distrust and anger over an affair, difficulty dealing with a trauma (such as the tragic death of a child), or issues with emotional abuse or substance abuse are a few reasons living apart for a time may be a necessary option. Financial considerations can also be at the root of a couple’s decision to separate versus divorce. Let’s take a look a few of the reasons legal separation may be the best fit for a couple experiencing deep seeded marital problems.

Reasons legally separating may be a better option than divorce:

  1. They love one another but can’t live together.
  2. Deeply held religious beliefs against divorce.
  3. One spouse will lose the other spouse’s government benefits (such as Social Security or military benefits) if they divorce.
  4. One spouse will no longer receive health care or insurance benefits if they divorce.
  5. They will lose tax benefits.
  6. There is a chance of reconciliation.
  7. The couple’s state of residence requires a legal separation before they are eligible to file for divorce.
  8. It is more affordable to live together and share financial resources than to split up into different households.

For situations where separation is chosen based on financial considerations, do your research before assuming any facts. Read the fine print on your health and life insurance policies regarding any kind of separation; some benefits will specifically exclude legally separated spouses from eligibility. Check out the fine print on employment benefits packages for the same reason; some employers view a legal separation the same as a divorce and will deny benefits.

Does my state recognize separation agreements?

Each state mandates their own divorce laws. The only way to know which laws apply to your marriage are to research the laws specific to your state, or contact an attorney in your state. That said, there are three general categories of state law regarding separation.

  1. Some states require a legal separation before you can file for divorce.
  2. Some states recognize legally separated couples, but do not require it to file for divorce.
  3. A few states do not recognize separation.

Knowledge is Your Best Defense 

Since laws governing divorce can be difficult to navigate, it is generally a good idea to consult an attorney about your legal obligations and protections. For example, the California Supreme Court in 2015 issued a ruling that divorcing spouses are not legally separated until they are living in separate residences. This ruling came out of a case between a husband and wife who were sharing a home in Northern California on the weekends as the wife traveled to Los Angeles during the week for work. The fact that they shared the residence a couple days a week invalidated their legally separate status. Whether trial separation, legal separation, or divorce is the best route for your troubled marriage, the key to your best outcome is to be informed

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