What it means to be separated – Find out the differences between trial, permanent, and legal separation.
Concerning marriages, separation isn’t the same as getting divorced—even when you have a “judgment of separation” from the court. Separation means that you are living separate from your spouse but are legally still married to them until you acquire a judgment of divorce. Even though a separation does not terminate your marriage, it does impact the financial obligations between you and your spouse prior to the divorce being finalized.
There are 3 kinds: trial separations, permanent separations, and legal separations. In a lot of states, only one (legal separation) will change your legal status—but all 3 have the possibility to impact your legal rights.
When you and your spouse need a break from your marriage, one choice is to live away from each other while deciding if you should divorce—a “trial separation.” From a legal standpoint, not a lot changes throughout a trial separation—all laws concerning marital property still apply. For instance, a court is going to treat the income you earn and the items you purchase throughout the trial separation as property obtained by a married person. That is going to often mean that the property is jointly-owned by both of you (subject to your state’s rules concerning property ownership).
When you and your spouse separate but want to try and reconcile, it’s a wise to create an informal agreement about the terms of your separation. For instance, the trial separation agreement could address:
- if you are going to continue to share a joint bank account or credit cards
- how you are going to budget what you spend
- which spouse is going to stay in the family home
- how you are going to share expenses, and
- when you have children, how and when each of you going to spend time with them.
If you eventually choose to get divorced, you might be able to use your trial separation agreement as a baseline for devising a marital settlement agreement.
When you and your spouse figure out that there is no hope to reconcile, your trial separation turns into a permanent separation.
When living away from your spouse without any objective to reconcile, but are not divorced, the law deems you permanently separated.
The Way Permanent Separation is Going to Impact Your Rights
Subject to the laws in which you live, permanent separations can alter property rights between a married couple. For instance, in many states, assets and debts obtained throughout a permanent separation belong entirely to the spouse that obtains them. After you are permanently separated, each of the spouses becomes entirely responsible for any debts they incur. Likewise, spouses that are permanently separated are not entitled any longer to any portion of property or income obtained by the other.
Why the Date of Permanent Separation is Important
Since the spouses’ rights to one another’s property and responsibilities for debts change considerably because of the date of a permanent separation, spouses often fiercely dispute the precise date their separation turned permanent. Say your spouse left aggravated and spent a couple of weeks crashing on a friend’s couch, but you did not talk about divorce once the month had passed, the date the separation turned permanent might be debatable. Meaning if your spouse received a significant bonus at work throughout that month, you might be able to insist that a portion of the bonus is entitled to you.
When you move out of the marital home and don’t anticipate any long-term reuniting with your spouse, think again about going out with each other or spending the night with each other just for kicks. If you do momentarily reunite, you’re risking changing the separation date and becoming responsible for your spouse’s financial actions throughout a time when you believed you were responsible for only your own spending.
After you have permanently separated from your spouse and have made essential agreements concerning your shared assets and debts, you don’t have to get divorced immediately. You may choose to stay married for various reasons, like a wanting to not disturb your children’s lives or to keep insurance coverage. Or simply maintaining your current situation is just easier than getting divorced. Nevertheless, you might choose to divorce as fast as you are able to get the documents finalized, or, when your state has a mandatory separation or waiting period, when that time is over.
Does My State Require Separation Prior to Divorce?
Many states’ laws require spouses to separate prior to a court finalizing their divorce. The terms of state laws on necessary separations differ—as to say, many states necessitate spouses to live “separately and apart” for a period prior to the court accepting a petition for divorce, while others don’t necessitate separation until after the petition gets filed. If you file before meeting the separation requirements, the court might dismiss your case. Other states may require you separating while the divorce is ongoing.
A lot of state laws that require separation prior to divorcing have exemptions to the separation requirement or are applied to only specific types of marriages. For instance, Arizona laws require a separation period only for spouses that are terminating a “covenant marriage,” and Nevada law requires a separation unless the spouses are filing for a no-fault divorce claiming “incompatibility.” (See Ariz. Rev. Stat. § 25-903 (2021) and Nev. Rev. Stat. Ann. § 125.010 (2021).)
In many (but not all) states, you can separate legally from your spouse by filing a petition in a family court. Whereas being separated legally is different legally from being divorced or married—you aren’t married anymore, but you are also not divorced, so you are unable to remarry.
A judge that grants your petition for legal separation is going to enter an order that includes particulars concerning the division of property, spousal maintenance, and child custody and/or support. In such manner, the legal separation order is likened to a divorce decree. When the spouses choose to get divorced after their legal separation order is put in place, they could decide to use some or all of the conditions of the order in marital settlement agreements.
Spouses decide on legal separation as an option to divorce for a multitude of reasons, like:
- spiritual beliefs
- a goal to legally keep the family together for the children’s best interest
- the requirement for one spouse to retain the health insurance benefits that you’ll lose in a divorce, or
- a simple distaste of divorcing despite the want to live individual lives.
An important note: If you’re thinking about legal separating instead of divorcing so you can retain insurance benefits, check the insurance plan prior to making that decision. Many consider legal separations the same as divorces for the purpose of ending health benefits.
Melissa Heinig, A. (2021, September 16). A guide to different types of separation: Trial, permanent, and legal separation. www.divorcenet.com. Retrieved May 19, 2022, from https://www.divorcenet.com/resources/family/types-separation.htm
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