If you are looking for a less permanent solution to resolving marital issues such as divorce, it may be useful to consider a trial separation. However, the trial separation can work if you and your spouse outline your intentions and expectations, strictly agree on a timeline, and understand the rules during your time apart.
A trial separation is an agreement between spouses where the couple spends designated time away from each other. In many cases, during a trial separation, one spouse may move out completely. But some couples cannot afford to pay for a second home, if so spouses can still reside in the same house, with one spouse moving into a spare room.
During the separation, you and your spouse can agree on a timeframe in which you will be apart from each other, but you will still remain legally married. It is important to keep in mind that atrial separation is not the same as divorce (or legal separation), and it does not have any legal impact on your marriage or property rights.
What Are the Pros and Cons of a Trial Separation?
The benefits of a trial separation usually vary from couple to couple. Here are some beneficial aspects for the trial separation:
- If you are hoping to reconcile, it allows you and your spouse to work through marital issues at a distance;
- It generally eliminates premature divorce filings;
- It allows both spouses to work through personal issues that may be indirectly interfering with the marriage;
- It assists both spouses understand what living apart would be like if they divorce;
- It provides the couple the necessary time to regain composure and communication skills before a divorce;
- The time apart may help emotions relax, preparing you and your partner to negotiate a settlement that is reasonable and just;
- You can reflect on what went wrong in the marriage and what you might be able to do to prevent these problems in future relationships; and
- If you and your spouse are on reasonably good terms, you can informally arrange child custody and financial payments for the separation period.
However, a trial separation is not the same as a legal separation or divorce. There may be no legally binding agreement applicable to the couple. In general here are some cons:
- As long as you are legally married, you and your spouse will continue to accumulate marital assets — and debts.
- If your spouse takes on a lot of debts during the separation, those debts may belong to you too;
- You may have to share any large windfalls you get, such as a raise or bonus earned at work; and
- Once the waiting period is up, you should be ready to proceed with your next move, whether that be divorce, legal separation or reconciliation.
If one or both spouses are unsure about whether they wish to terminate their marriage, they have an option to do the trial separation. A trial separation allows spouses to extensively consider the decision to divorce, all while they experience what a divorce might actually be like in the future.
How Do I Draft a Trial Separation Agreement?
Trial separations only can function if both spouses are on the same terms regarding the timeline, rules, and overall reason for the break. One of the most beneficial things you can do is crave out some time with your spouse and come up with the details in a written separation agreement.
A separation agreement is a written document signed by both spouses that outlines the terms and timeline for the trial separation. Putting the “rules” of your separation in writing prevents any confusion on expectations, and it encourages both spouses to stay on track.
Deciding to go through a trial separation is a personal decision for the spouses to address together. If you are on good terms with your spouse and you both understand the reasons and expectations from each other during your break, you may not necessarily need a written agreement. However, if you divorce in the future, keep in mind that your separation date may be important for your case. If you have a written agreement, there is no question about when you separated. In most situations it is encouraged to have a written agreement available.
The provisions of your separation agreement will vary on what your goals and expectations are as a couple. If you plan to separate while you work through issues and the goal is to reconcile, you should include the end date of your separation for those purposes. Additionally, it is crucial to discuss financial details in terms of if you will continue to use the joint bank account.
Furthermore, deciding on the living arrangements will be helpful to include. Discussion on how to handle marital bills and care for the family pets can decrease the tension later on. Specifically, if you have children, you need to decide on custody issues that determine which of you will be the primary caregiver, and how and when each of you will spend time with them.
It might be a good idea to create a trial separation checklist that contains your priority items. When you sit down with your spouse to discuss the terms of your separation, you can refer to the list to ensure the agreement meets all the terms you want in the agreement.
What is the Impact of a Trial Separation on Divorce?
As mentioned earlier in this article, a trial separation does not have the same legal effect as a legal separation. A legal separation (accessible in most states) is a legal process that changes your marital status. Legal separation allows the court to divide marital property, order financial support, and decide child custody.
To emphasize again, a trial separation is not a legal process. Therefore, neither you nor your spouse can request the court to decide the issues during your separation. If you and your spouse earn money, acquire property, receive an inheritance, or incur debts, the court will divide those only after one spouse files for divorce.
Although the trial separation itself does not impact your divorce, your separation date may vary. For instance, if during the trial separation, one spouse met someone else and began a relationship, you may not be able to use adultery as grounds for divorce. If you file in a state that permits fault divorce or during the property division or spousal support phase of the divorce.
Generally, any person considering a trial separation must consider some things before moving forward. They should determine a clear start and end date for their trial separation. Keep in mind that atrial separation is not nearly as concrete as divorce, but spouses must still establish rules to make the trial effective.
Additionally, it is helpful to establish some ground rules including:
- Where each spouse will live during the separation;
- What the goal of the trial separation is;
- How will you communicate about this to your family;
When Do I Need to Contact a Lawyer?
If you have questions about whether a trial separation is right for you or how it will impact you if you divorce later, consult with an experienced family law attorney near you. It will be useful to gather some information on what trial separation is like in your local state.