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.
- Failed Counseling
- For the Sake of Everyone but Yourselves
- You’re in Love with Someone Else
- Trust Issues
- Lack of Participation
Separation does not have to end in divorce, and there are some benefits to marriage separation.
- Cool Things Off
- Alternative to Divorce
- Insurance Benefits
- Government Benefits
- Easy Settlement
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 should avoid to help your separation go as smoothly as possible.
- Lying about Your Finances
- Being Inconsiderate of the Children
- Letting Emotions Take Over
- Not Taking Care of Yourself
- Refusing to Compromise
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:
- Child custody and child support
- Visitation schedules
- Alimony or spousal support
- Division of assets
- Division of debts
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.