Common Questions About Separation

Frequently Asked Questions About Separation Between Spouses

What Is Separation and How Does It Work?

Marriage separation means a couple has chosen to separate some aspects of their lives but remain legally married. There are two types of separation: legal separation and trial separation.
How spouses handle separation depends on their relationship and the type of separation. When couples decide to separate, they determine whether to continue living together or if one spouse will move out.
From there, the couple makes decisions about property, bills, and debt. If they have children, the couple will also need to establish child visitation and support terms. The terms of a separation can be outlined in a Separation Agreement.

What Is the Difference Between Legal Separation and Trial Separation?

Legal separation is a type of separation where a couple asks the court to approve their terms for living separate and apart. Spouses can specify these terms, such as how to manage finances and debts, child support and custody, and spousal maintenance, in a Separation Agreement for the court to approve.
Typically, couples turn to legal separation when they do not want to immediately end their marriage with divorce but rather live apart and ensure their rights regarding money, property, children, and debts are protected. Legal separation gives spouses time to decide if they should reconcile, or proceed with a divorce.
Trial separation is more of an informal agreement between two spouses to separate and decide whether to continue their relationship. A trial separation is on the spouses’ terms without involving the court. Property acquired during a trial separation is still marital property, but couples can use a written Separation Agreement to document decisions about assets, children, and finances.
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Can Spouses Live Together While Separated?

Couples may choose to live under the same roof while separated because they have children or they cannot afford the cost of living separately.
Living together while separated can save money and may appear to be in a child’s best interest, but it could also introduce other problems. When remaining in the same household, spouses may have a hard time maintaining boundaries if they don’t discuss how things are going to work at home.
Living apart in two residences can provide much-needed space to reflect on the relationship and also diffuse a toxic situation. The potential downsides are the impact on children seeing their parents in two separate living spaces, as well as the costs of running two households.

Does Separation Lead to Divorce?

Separation is an alternative to divorce for most couples, but it can also be a step towards it. Some common reasons spouses separate include:
  • Money problems
  • Lack of communication
  • Infidelity
  • Intimacy issues
  • Abuse, and more
Married couples may choose separation over divorce for financial reasons (e.g. they don’t want to miss out on their spouse’s benefits), for religious reasons, or for their children. They may also believe that reconciliation is a possibility.
It is during separation when a couple decides if they want to permanently end their marriage or if they can overcome their marital problems and get back together.
Some states have mandatory separation periods, which is the amount of time the couple must remain separated before pursuing a divorce. The waiting period can be anywhere from 1 month to 2 years, depending on the state.

How Long Can a Couple Be Separated?

A couple can remain legally separated for as long as they want. Getting a divorce is only necessary if spouses wish to remarry. Two spouses can get separated but remain married indefinitely.

Can Separation Save a Marriage?

Many view separation as a clear step towards divorce. However, time apart to reflect on a relationship can be a positive thing for a couple. The outcome of a separation will always depend on the couple and their expectations. If the couple agrees to work together on their marriage, they may very well be able to build a better life together.
Spouses should agree on the purpose of a separation and what they intend to accomplish by living apart. Staying on the same page can help to ensure that one partner doesn’t think they have a future when the other one has already moved on.

Can Spouses Date Other People While Separated?

Dating while separated and not yet divorced is possible, but not recommended.
All states allow marriages to end with a no-fault divorce, meaning both spouses agree to be divorced (and provide no reason for doing so). Fault divorce, on the other hand, is when one spouse can prove that the other did something wrong to end the marriage. To get a fault-divorce, a spouse must offer proof that their spouse is guilty of one of the fault grounds. One of those grounds is adultery.
Dating, therefore, adds complexity to separation because it could potentially be used as the grounds for pursuing a fault-divorce. Dating someone while still married could also negatively impact negotiations on spousal support and child support in a legal separation.

Who Moves Out During Separation?

When determining if one spouse should move out and who that will be, there are a lot of factors to consider including children, finances, and marital property.
If the couple has children, they should think about what would be best for them. Typically, the spouse moving out would not be the primary caregiver. The parent who is the predominant caregiver to the children would reside with them.
Another consideration is the money it requires to run two households and pay two sets of bills. Because a couple is married and shares property, having a spouse move out may be too much of a financial burden. Evaluating the cost and family impact can help spouses determine the best course of action when it comes to living arrangements.

Who Gets Custody of Children During Separation?

Separation can be a hard time for children, so parents should work together to establish custody arrangements. The primary caregiver should remain in the marital home if possible.
Parents should meet and discuss a parenting plan and a visitation schedule. The court will need to accept the plan if spouses decide to pursue a legal separation. The plan should be in the best interests of the children and preserve their routine as much as possible. If parents can be respectful towards one another and come to a decision regarding child custody, the courts will usually honor it.

How Are Child and Spousal Support Determined?

It is the parents’ obligation during separation to support their children. A couple can lay out child support terms in a Separation Agreement, and the courts will confirm the amount during the legal separation proceeding. Before a legal separation, the primary caregiver can seek a temporary child support order from a judge to cover the cost of living for the child until the court reaches a final judgment on permanent child support.
Spousal support, or spousal maintenance, is money paid by one spouse to the other after separation. Spousal support is granted based on need, specifically if one spouse needs income to maintain their quality of life until they can get a job. Again, spousal support can be laid out in a Separation Agreement and granted by a judge during a legal separation. The duration and amount will depend on the spouse in need, length of the marriage, and so forth.
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What Is the Cost of Separation?

The cost of separation varies according to where the spouses live and the level of cooperation between them.
Lawyer fees may take up a great portion of the overall costs. Additional costs include filing a petition for a legal separation and a Separation Agreement. If both spouses agree to the terms, costs will be relatively straightforward. If one spouse files a counter-petition because they don’t agree with the terms, there may be the added costs of working with a mediator to come to an agreement. Otherwise, the agreement goes before a judge to review, approve, and sign.

Can Separation Occur Without a Lawyer?

A couple who is separating doesn’t require a lawyer to make a Separation Agreement and address finances, property, and child terms. However, spouses may choose to consult their own attorney if they don’t agree on separation terms and are pursuing a legal separation in court. Legal assistance can also be helpful because lawyers are experienced in handling these matters and can provide guidance during an emotional separation process.

How Do Spouses Cope With Separation?

Separation is not easy, and there are bound to be feelings of sadness, anger, confusion, and anxiety. It’s important for each spouse to take time to process their feelings and ensure they have someone to talk to, like a trusted friend, family member, or mental health professional.
Ultimately, spouses may be separating from each other to address problems in their marriage. Time away to reset can be healing for both individuals and help each person identify what they want, whether it’s to stay together or move forward separately. Open communication and respect between spouses can go a long way to keeping disagreements to a minimum and ensuring the breakup doesn’t prolong bad feelings for everyone involved.
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