What Should You Know Before Separating from Your Spouse?

Divorce lawyer with clients signing papers

When you’re facing a situation where you think you’d like to end your marriage, you can consider a separation rather than a divorce, at least initially. 

You can informally separate, where you try living separately for a while to see how it goes or whether you can work on certain issues. 

You can also legally separate, which is similar to a divorce in many ways. 

The following are some of the things you should know before going through a separation from your spouse. 

Types of Separation

Separation isn’t the same as a divorce, even if you legally separate, meaning you get a judgment of separation. Separation means you live apart, but you are still legally married until you receive a judgment of divorce.

A legal separation doesn’t end a marriage, but it does impact the financial responsibilities that you and your spouse share before you divorce.

There are three types of separation—trial, permanent and legal. In many states, only legal separation affects your legal status, but all three categories can impact your legal rights. 

During a trial separation, not that much changes. You just may be living apart and taking a break from your relationship. 

All the marital property laws still apply, and a court treats any money earned during this time, or things that you buy, as property that a married person acquires. That means even if you’re living apart, if you were to buy property, for example, it’s jointly owned by both you and your spouse. 

If you’re separating, but your ultimate goal is to reconcile with your spouse, you might want to create an informal agreement about how you’ll manage your separation. 

You might write down whether you’ll keep sharing credit cards and bank accounts, how you’ll budget, and who’s going to stay in your family home. 

You might also discuss how you’ll share expenses and how you’ll spend time with your kids if you have them. 

If you end up getting divorced, you may be able to use the agreement you drew up for your trial separation as a starting point for your marital separation agreement. 

Having the support of a family law attorney is essential for navigating the court system, understanding financial obligations, and learning more about family law regulations throughout the course of your divorce. Without their expert advice, individuals may struggle to get fair agreements both legally as well as financially while combating emotions that often arise in these situations.

If you live apart and you have no plans of getting back together, then you’re considered permanently separated in the legal sense. 

State laws play a role in how permanent separation might affect property rights. For example, in some states, if you acquire assets or even debt, they belong only to the person acquiring them. In these states, once you’re permanently separated, each spouse is entirely responsible for their debts, but they are no longer entitled to any share of income or property the other person acquires after the legal separation.

 In some states, you’re legally required to separate before your divorce is finalized. In these states, you may have to live apart and separately for a period of time before a court will accept a formal request for divorce or a petition. 

In the states where this is the case, if you file before meeting separation requirements, the court might dismiss the case. 

There are some states where you can legally separate if you file a petition in family court. You aren’t married, but you also aren’t divorced, so you can’t remarry. A legal separation order from a judge will include details about child support and custody, alimony, and property division. 

Planning For a Separation

If any type of separation, legal or otherwise, is something you’re considering, you should have a plan for where you’re going to stay or live. Take your time and research to minimize some of the stress during a difficult time. 

You also need to identify why you’re leaving. A separation doesn’t inherently mean you’re preparing for a divorce. For some people, it’s about taking some time to think and figure out how to move forward. 

You should also get legal advice before you leave your home. You’ll need to figure out, for example, if leaving would be considered abandonment which can potentially affect custody of your kids. 

Define for yourself what you want your partner to understand about why you’re leaving so you can more effectively convey it to them. You don’t want to overwhelm your spouse with every single issue you have. Think about what the core issue is for you. 

If you have kids, you’ll also have to talk to them. Give them a couple of weeks between when you tell them and when the separation actually starts. 

Is Separation Good for a Marriage?

As we’ve talked about, people can have very different goals for a separation. We tend to inherently view separation as a negative thing, but it doesn’t have to be. 

A legal or permanent separation tends to mean a marriage is over, but a temporary or trial separation can be a time when you reevaluate your relationship and determine if you could be willing to compromise and get back on track. 

When you separate, if you handle it well, it can be a way to create space and reduce conflict, as well as strong emotions. You can take a more analytical view of your relationship. 

If you have similar goals to your spouse when you’re separated and you want to move forward on the same path, you can do a lot of work on your marriage and make it stronger when you separate and come back together. 

Dos and Don’ts

If you feel like you’d like to have a productive separation that puts you on the road to reconciliation, there are some general dos and don’ts to keep in mind. 

Do determine how you’ll communicate ahead of time. Figure out what level of dating or intimacy with other people you’ll allow if any at all. 

Make sure you’re both very clear on the rules you’re creating for your separation because any confusion can lead to more problems. 

Take as long as you feel like you both need, rather than trying to force reconciliation. Everyone is going to have to their own needs and timelines. 

Finally, don’t put pressure on yourself to figure anything out right away or have any particular answer on anyone’s timetable but your own.

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