Sometimes, couples take a break from living together in order to evaluate their marriages and make tough decisions about the future. A separation can be relatively painless when there are few assets, no children, and a mutual recognition that this is the best course of action. Add children, a house, bank accounts, and perhaps one spouse's reluctance to split-up—even temporarily—and the scenario can drastically change. But in either case, if there’s an eventual understanding as to each spouse’s responsibilities during the separation, then heed this age-old advice—get it in writing.
A Written Agreement Is Advisable, Even for a Trial Separation
Most couples consider a trial separation to be a period for them to clear their heads and reassess their marriages, without the anxiety that tends to be a daily, unwanted companion of living together. Ultimately, the couple will decide to reconcile or conclude that the marriage isn’t going to work—necessitating a move to the next step.
We recently surveyed some of our separated and divorced consumers. Based on our results, 35% of consumers that had gone through a trial separation ended up filing for divorce, while 19% filed for legal separation, and 8% reconciled. The remaining 38% remained unofficially separated.
Whatever path a couple ultimately takes, spouses must continue to attend to marital obligations during a trial separation. Whether it’s deciding how to split the bills, handle marital assets, or spend time with the children, these issues need to be addressed.
A trial separation is an informal arrangement that doesn’t involve the courts. A couple can orally agree on what their roles will be while they’re apart, and there are times when this works out just fine—especially if the separation is for a very limited period. But we don’t live in a perfect world, and all too often, people aren’t true to their word. If one spouse fails to abide by an oral agreement made during a trial separation, the other may be left with no remedy. Generally, courts have a very difficult time enforcing oral agreements.
It's best to write down all of your agreements in one document that both spouses can approve and sign. Having a written contract will help prevent future confusion and debate regarding key issues.
A Legal Separation Requires a Court Order
In the world of family law, the term “legal separation” usually refers to filing a formal petition (request) with a court, asking for an official separation. This is very similar to a divorce petition in that it addresses all the same issues, such as:
- spousal support (alimony) and child support
- custody and parenting time (visitation), and
- division of debts and marital property, like a house, furnishings, and financial accounts.
You'll also have to follow all the same steps in order to serve your spouse with the petition. And, just like with a divorce, at the end of the process, you’ll have a written court order that lays out all the terms of the separation—whether you agreed to the provisions between yourselves, or a judge had to decide for you. The main difference is that at the end of the separation process—you’re still technically married.
The legal separation process isn't used very often. This may be because it's not available in every state. For example, New York and California provide formal separation procedures, but Florida and New Jersey don’t.
Many spouses may want to avoid the time involved with a legal separation, especially if they're fairly certain they want a divorce in the near future. Completing paperwork, disclosing financial information, and writing up a separation agreement take time and effort, even in the simplest cases. If you'll have to repeat some of these steps again, it may not make sense to ask for a separation first. It's important to think through these issues before you make a decision one way or the other.
According to our survey results, only 26% of our separated or divorced consumers filed for a legal separation, while 62% filed for a divorce without getting legally separated first, and the remaining 12% remained unofficially separated.
The cost of a legal separation is also a factor. Some separations may be less expensive than a full-blown divorce, but that's not always the case. Similar to a divorce, a legal separation case may end up costing quite a bit, especially if the spouses aren't getting along or they have a complex marital estate.
According to our survey, 38% of consumers spent under $500 on the fees and costs associated with their legal separation, while 37% spent somewhere between $500-$5,000, and 25% spent over $5,000. Although many of the agreements you reach in your separation may be honored in a divorce (meaning you won't have to rewrite them), you'll still have to pay additional filing fees, and prepare divorce paperwork.
A huge majority of the consumers that obtained a legal separation reported that they ended up getting divorced. A whopping 87% of legally-separated couples eventually filed for divorce. If you're sure your marriage is over, it may make financial sense to skip the added costs of a legal separation.
Some Couples Prefer to Avoid Court and Opt for Long-Term Separation Agreements
Another option for couples that don't want a divorce, but want to live separately for a long period of time and avoid the court process, is to enter into what’s known as a Separation Agreement (also called a Property Settlement Agreement). (Some attorneys may also refer to this as a “legal separation,” especially in states that don't offer a formal, court-ordered separation.) A separation agreement is a legally binding contract, and if one spouse breaches it, the other can file a lawsuit asking a judge to enforce it.
Separation agreements normally cover all the same issues as a divorce. And if the couple ultimately divorces, the agreement usually becomes part of the judgment. These types of separation agreements are voluntary—that is, the spouses have to mutually agree to the terms. They can do this on their own, through attorneys, or with a mediator's help. If they can't agree, they'll have to consider other options.
Separation agreements must be in writing, signed by both spouses, and notarized. It's best to have an attorney prepare the document, because of its complexity and importance. And it can't be emphasized enough that independent lawyers should review the agreement for each spouse: You can't use the same attorney to represent both of your interests. Having attorneys for both spouses may help prevent future claims of coercion or confusion about the terms. If you have questions about separation agreements, you should contact a local family law attorney for advice.