Trial or Permanent Separation & Your Legal Options
There are three types of separation: trial separation, permanent separation, and legal separation. While legal separation must be approved by a family court and may serve as an alternative to divorce, trial and permanent separation are more immediate measures taken before a divorce or potential divorce.
Required in Some States
Certain states require married couples to physically separate before granting a divorce.
Trial separation describes spouses who choose to separate before officially deciding to divorce. Since spouses undergoing trial separation have not yet decided to divorce, any assets or debts acquired during the trial separation will likely be treated as if the couple had never separated.
Trial separation can be beneficial for spouses considering divorce because it leaves the most room for reconciliation. Spouses can have time apart from each other without many, if any, legal ramifications. For example, each spouse’s income during a trial separation will likely remain marital property, as well as any property that a spouse acquires, such as a new car. Similarly, any debts that one spouse acquires will most likely be the debts of the marriage. Spouses in a trial separation may want to agree on a new budget and monetary expectations, especially when one or both spouses will be spending money on a new residence.
Trial vs. Permanent Separation
Trial Separation = spouses are not living together but have not yet decided to divorce
Permanent Separation = spouses are not living together and have decided to divorce
Permanent separation may be the next step after trial separation if a couple decides to divorce. Many states consider permanent separation a change in legal status that can affect property division. These states consider any assets or debts acquired after the date of permanent separation to be solely attributable to the spouse who acquired them.
Determining the date of permanent separation is not always easy and may be a fact in question during a divorce. For example, if one spouse left the marital home after a fight and stayed with their parents for a few weeks before broaching the topic of divorce, the date of separation may be up for debate. This is especially important when a financial windfall or setback occurred during the period in question, such as a bonus at work or the purchase of a big ticket item. Sometimes the date of permanent separation can be provided by a separation agreement.
Many spouses choose to draft, sign, and date a separation agreement to establish expectations and a timeline for the separation. A separation agreement is not necessary for either a trial or permanent separation, but it will likely prove useful if questions arise.
If a couple intends to enter into a trial separation, their separation agreement should indicate that they are not ending the marriage and have not yet decided to divorce. It may also set out financial expectations, such as whether bank accounts and credit cards will continue to be shared and how bills will be paid. Additionally, the agreement can cover where each spouse will live and how parenting time will be shared. It may be helpful to all involved to conclude the agreement with a start and end separation date. The agreement can indicate that the couple will revisit the agreement on the end date and decide whether to enter into a new agreement, reconcile, or divorce.
Protect Your Negotiation Rights
Any separation agreement should include a sentence or two indicating that neither spouse intends to forfeit any right to negotiate for a different arrangement during divorce proceedings.
If a couple intends to enter into a permanent separation, their separation agreement may look similar to a trial separation agreement, but it would indicate that they have decided to permanently separate and ultimately divorce. Couples who are permanently separated are not required to divorce immediately, but they must intend not to continue with the marriage.
Ultimately, neither trial nor permanent separations are the equivalent of a divorce. Couples may decide to reconcile at any point, and since they have not legally ended their marriage, they will have a much easier time returning to a married state. If, however, a couple does decide to end their marriage for good, they will be best served by the greater legal protections of a divorce.