All couples go through rough patches. However, if you and your spouse are going through a lengthy rough patch, or if you have tried repeatedly and just can’t see eye-to-eye, you might try a marriage separation.
Marriage separation is not the end of the world. In many cases, spouses find that having a break from one another is just what they need to take the pressure off and rekindle their relationship. In other cases, a separation is what people need to start the road to divorce and start over afresh. Either way, it is important to know a few things regarding how a marriage separation can affect your rights, your relationships, and your property.
What Is Marriage Separation?
The basic idea of marriage separation involves two spouses living apart from one another without undergoing a formal divorce. The spouses are still legally married, so certain rights that accompany marriage may still apply unless you have a formal agreement detailing otherwise. Of course, the rules regarding what marital rights still apply during a separation will depend on what state you live in and the rules of your jurisdiction.
Types of Separation
Generally speaking, there are three common types of marriage separation. In most states, only a legal separation changes your legal marital status. However, all three of them could potentially affect your rights, depending on what state you live in.
A trial separation is essentially what it sounds like—a trial run to see how things work out while you and your spouse decide whether to reconcile or to go through with a formal divorce. During a trial separation, the spouses are still legally married and all the same legal rights that accompany marriage apply. This is particularly important when it comes to property ownership. Money earned and property purchased during a trial separation is most likely to be considered owned jointly by both spouses depending on your state’s rules on property ownership.
If you are undergoing a trial separation, it is generally a good idea to write up an informal agreement regarding how things are going to proceed. Details like family budgets, living arrangements, and time spent with children are always good to map out so that everyone knows what to expect, whether the trial separation ends in reconciliation or in permanent separation.
If you and your spouse separate with no intention of attempting a reconciliation, then you have a permanent separation. With a permanent marriage separation, you are still legally married, although your property rights may change depending on your jurisdiction.
In some states, assets acquired during the separation belong solely to the spouse who acquires them. Likewise, any debts incurred during the separation are the responsibility of the spouse who incurs them. If you intend to have a formal divorce, some states also require that you are separated for a certain period before the divorce is finalized. For these reasons, the precise date of separation can be an important issue in these jurisdictions.
Some states also have a legal separation, which you can get by filing a request in family court or by filing a separation agreement with your local register of deeds office. With a legal separation, you create a completely new legal status—you aren’t legally married, but you aren’t divorced, either. You cannot remarry if you are legally separated.
Often, a court’s order granting the legal separation will also outline the spouses’ rights and duties regarding the division of property, alimony, and child custody and support. Oftentimes, if a legal separation leads to a formal divorce, these agreements of rights and responsibilities are also incorporated into the formal divorce decree.
Signs You Should Consider Separating
Deciding to separate from your spouse is never an easy decision. You have built a relationship with that person, and there are also property considerations as well. If you have children together, it also makes matters a little more complicated. If, however, you are having marital troubles and are considering a separation, here are a few factors to consider.
If your partner is abusing you, whether that abuse is physical, emotional, or psychological, a separation may be in your best interests.
If you have attended counseling, but still can’t see eye-to-eye, you may consider a separation, especially if you are experiencing tension in your relationship. If your counselor or religious leader has suggested a trial separation, that can be a big indication that a separation may be in both of your best interests to sort things through.
For the Sake of Everyone but Yourselves
If you and your spouse have agreed that you are not getting along, but you are staying together for some reason—maybe it’s for the sake of the children or because you’re concerned how your friends and family will react—a separation may help you evaluate whether those reasons are enough to stay together, or whether divorce is in your best interests.
If your partner is diagnosed as a narcissist, it may be easier to undergo a separation than to continue living together. As a general rule, narcissistic personalities are very difficult to get along with, and may not have any moral reservations about how they conduct themselves.
You’re in Love with Someone Else
If you think you are in love with someone else, it may be easier and kinder to separate from your spouse so that you can reevaluate your relationships. In some cases, if you are unhappy in your marriage, feelings for another person may be a result of that unhappiness. A separation may give you the opportunity to discover whether your feelings are true, or simply a reaction against what is going on in your marriage.
If there are trust issues in your relationship—such that you no longer trust your spouse—you may want to consider a separation. Trust issues may be common in situations where one (or both) spouses have had an affair.
Lack of Participation
If your partner is no longer invested in the relationship, that may be a sign that parting ways could be beneficial. No one wants to spend their time and energy with someone who clearly doesn’t want to be with them. If your spouse barely acknowledges you, makes plans without you and acts as if you don’t exist, maybe it’s time to get some distance—and a separation agreement.
Separation does not have to end in divorce, and there are some benefits to marriage separation.
Cool Things Off
Separation can give you and your spouse some time apart to think things through. Sometimes a cooling-off period, if you and your spouse have been in conflict, is healthy. It also can give you an opportunity to attend couples counseling and determine whether you want to move forward with a divorce, or whether you want to reconcile.
Alternative to Divorce
For people whose religious beliefs do not support divorce, marriage separation provides an avenue for the spouses to live separately without violating their beliefs.
Separation also has a different effect on insurance benefits than a divorce. For example, a divorce may terminate a spouse’s health care benefits if they were on their spouse’s insurance. In the case of a separation, however, that spouse would be able to retain insurance benefits while they stabilize their situation.
Some government benefits also depend upon the length of the marriage. For the purposes of social security benefits and benefits under the Uniformed Services Former Spouse Protection Act, the magic number is a minimum of 10 years.
Regarding social security benefits, if your spouse stands to draw more social security than you do, it may be to your advantage to remain legally married for 10 years or more so that you can draw on your spouse’s social security income. Military spouses must be married to their service member spouse for a minimum of 10 years in order to take full advantage of the Uniformed Services Former Spouse Protection Act. However, when dividing assets such as military retirement income, the judge in the case has full discretion.
In both of these cases, if you have tension in your marriage, a separation may be helpful to extend the life of the marriage rather than an immediate divorce.
If you do eventually decide to have a formal divorce, a separation agreement can easily be converted or incorporated into a final divorce settlement. Since you’ve already outlined the rights and responsibilities of both spouses, this helps make the divorce process faster and easier.
Mistakes to Avoid
When discussing the possibility of a separation or divorce, tensions can run high. It is easy to make mistakes as we are only human. But there are things you can do to help your separation go as smoothly as possible.
Lying about Your Finances
Because separation and subsequent divorce affect your rights regarding money, property, and debts, it is important to provide accurate information. Both sides have a right to know exactly how much you have in marital debt and assets as well as realistic budgets that reflect your lifestyle and expenses.
Being Inconsiderate of the Children
When children are involved, keeping them happy and healthy can become a bit more challenging. They are sensitive to the disagreements you have with your spouse even if you are not aware of how it affects them. Some children blame themselves for the separation or divorce of their parents, and they may need extra support during this time.
Instead of using your children as messengers between you and your spouse, make sure you have direct lines of communication open. If you have issues that need to be discussed and the conversation could turn contentious, try talking about it when the children are not present. Try to show a united front when it comes to the welfare of the children—no matter how old they are, they need to be reassured that they are still loved by both of their parents. Never criticize the other parent in front of the children and never use your children to get back at your spouse.
Letting Emotions Take Over
It is easy, when we are upset or angry, to think with our emotions. Emotions can run high during a separation, and our instinct is to react instead of taking the time to think rationally about the situation. It may be difficult, but try not to let emotions take over. A flare of anger in a moment could damage any progress you’ve made during a separation. Take time to cool off before responding.
Not Taking Care of Yourself
Just as we said you shouldn’t let emotions take over, you also need to make sure you take care of your emotional and mental health. A separation or divorce can be an extremely stressful event, and it can take its toll on your body. Make sure you exercise some amount of self-care, whether through physical exercise, support groups, participating in therapy, or spending time with friends.
Refusing to Compromise
When you are negotiating something like a marital separation, it is unlikely that you will get everything you want. Refusing to budge when discussing issues only results in more conflict and stress.
This is not to say that you should give in to everything your spouse wants, but that you should both be willing to compromise in order to reach an agreement you both can live with. Especially when children are involved.
Do I Need a Separation Agreement?
Technically, you do not need a written agreement to be separated—all that’s required for a marriage separation is to be living apart from your spouse. However, a written separation agreement is a good idea if you want to make sure you have both spouses’ rights and responsibilities outlined and mapped out.
Topics that should be covered in a separation agreement include:
Advantages to a written separation agreement include knowing what is expected of everyone involved and having an opportunity to figure out what kind of agreement you can live with in the long-term. Since the agreement is not a final divorce decree, you can communicate with your spouse and revise the agreement prior to a divorce if things are not working out as well as you had previously envisioned.
As we’ve stated above, one of the good things about having a clearly written separation agreement is that it can be easily incorporated into a divorce settlement if you choose to go that route.
It is never easy to make the decision to separate from your spouse. There are a number of consequences the decision can have on your interests in property, your debts, your assets, and your children. When considering a separation, it is in your best interest to consult an attorney who specializes in family law and divorce law. Since each state has its own rules when it comes to family law and separations, you will want to discuss your situation with an attorney licensed to practice in your state.
A skilled family law attorney can help you with drafting separation agreements and negotiating with your spouse when it comes to outlining the rights and responsibilities each spouse has during the separation. They also have the knowledge and the tools to navigate you through a marriage separation whether you decide to reconcile or proceed with a divorce.