Separation is a different status from divorce or marriage. Some states require a separation or waiting period of 10 to 180 days before finalizing a divorce. Other people may choose separation to see if they can live apart or if distance helps them reassess their marriage. Some people practice a religion that does not allow for divorce, so separation is the only option they have if the marriage does not work.
No matter the reason for choosing separation, one thing is for certain. A separation agreement helps the parties stay on the same page and treat each other fairly. It can also make divorce easier if that becomes the ultimate decision.
Separation vs. Divorce
It is important to understand that separation, even permanent separation, isn’t a divorce.
Separation doesn’t return parties to single status. The marriage is legally intact, even if they don’t live together. They may date other people, but they can’t marry someone else. Also, separated parties usually keep one another on health and life insurance policies.
The parties can’t file joint tax returns and must use married filing separately or head of household status (if physically apart for at least six months). But if the separation agreement is informal and not filed in court, joint filing may remain an option.
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Types of Separation
There are three types of separation: trial, permanent and legal. Depending on the state laws and circumstances, these types may exist independently or overlap.
Legal Separation
Legal separation allows a couple to live separate lives while remaining married under the law. This arrangement enables them to keep some benefits of marriage (support and insurance) while carrying on independently. A legal separation is usually a permanent arrangement or a step on the path to divorce.
A legal separation is filed in court and approved by a judge, much like a divorce. Once approved, the order outlines terms like property division, debt responsibility, child custody, and support payments. Most legal separations occur by agreement but it is also possible to file for one and have a trial if your spouse does not agree.
Many couples legally separate and then go on to divorce. In this situation the terms of the separation usually become the terms of the divorce. In some states legal separation is used as a grounds for divorce.
Legal separation isn’t an option in all states. Delaware, Florida, Georgia, Mississippi, Pennsylvania, and Texas do not recognize legal separation.
Trial Separation
A trial separation allows parties to live apart while they consider reconciliation. This arrangement is usually only a physical and emotional separation. Legally, marital property laws still apply. For example, any property acquired after separation is still community property of the marriage rather than separate property.
The parties don’t need to file a trial separation in court, but they may wish to. It is a good idea to draft a separation agreement that determines who stays in the family home and has access to joint accounts. The agreement provisions should also address splitting expenses and child custody and visitation as well as spousal and child support.
If the trial separation ends with divorce, the agreement offers a template for settling the divorce. That can save time and money on attorney fees.
Permanent Separation
A trial separation can become a permanent separation. Also, in some states, the law may consider you permanently separated if you remain separated but never divorced. A permanent separation may also be a legal separation if a separation agreement is filed or a separation decree is obtained in court.
The most critical element of a permanent settlement is its effective date. If the parties go on to divorce, the separation date is usually used as the date of valuation for all marital assets. Additionally in community property states, property acquired after the date of separation is usually considered separate property, not marital property and is not divided in the divorce.
This division also applies to debts. New car loans, credit cards, or signature loans taken out by an individual after separation usually are their sole responsibility.
A separation agreement proves vital in these arrangements too. It clearly establishes the date of separation. The agreement usually includes other essential terms, such as the division of marital property and debts and decisions about child custody and visitation as well as spousal and child support.
What Is a Separation Agreement?
A separation agreement dictates how spouses handle their affairs during separation. Its terms usually divide property and debts, indicate who lives in the marital home, provide schedules for child custody and visitation and determines spousal and child support.
Reasons for a Separation Agreement
What is the point of a separation agreement? In one word–clarity. When emotions run high, as they do when relationships face challenges, it is easy for parties to misunderstand intentions. One party may believe they can remain in the marital home, while the other believes they agreed to list it for sale. Having these terms in writing makes it much easier for couples to remain on the same page and avoid insurmountable conflicts.
Also, separation can make that process easier if a couple divorces. If the terms of the separation agreement worked well during the trial period, they could easily translate into final divorce documents. That way, cases settle quicker and require lower attorney fees.
There are also situations where parties prefer legal separation as an alternative to divorce. They may choose this route because:
- Religious or personal beliefs reject divorce
- They wish to keep the family together legally for the children’s benefit
- One party needs to remain on the other party’s health insurance benefits
In these instances, it is likely the separation is permanent, and an agreement is crucial. An agreement defines each party’s rights and contains vital provisions that help the separation proceed on equitable terms.
Provisions in Separation Agreements
Common provisions in separation agreements may include:
- Whether the separation arrangement is temporary or permanent
- Spousal support payments, including frequency, amount and duration
- Custody arrangements for minor children, including visitation schedules
- Child support payments, including frequency, amount and duration
- Division of child-related costs, e.g., health insurance, school fees, extracurricular activity fees, etc.
- Division of assets and debts
- Disposition of the marital home
- Care and custody of pets
- Child travel consents in case either parent wishes to travel with the children alone
A separation agreement may also incorporate a prenuptial agreement by reference and apply its terms to the separation. Doing so is one of the easiest ways to draft and finalize a separation agreement.
When You Need a Lawyer
There are online templates for separation agreements. However, that solution doesn’t work for everyone. There are situations where each side should hire a lawyer to help negotiate agreement terms.
After all, a settlement agreement is a binding contract between parties. If a spouse doesn’t follow provisions, the other spouse can enforce it in court. So, it’s important to understand the requirements and how to comply with them.
Also, the agreement provisions must be clear and enforceable. An attorney offers the background and skills to ensure that. It can be hard to know what you are entitled to until you talk with an attorney who can explain how a court might decide your case.
There are situations where it is impossible to negotiate without representation. Attorney involvement in separation agreements may be necessary if:
- The relationship has a power and control dynamic that precludes fair negotiation
- Domestic violence is an issue in the relationship
- One party feels pressured into signing the agreement
- Only one of the parties hired an attorney
- Either party gained significant assets during or after the marriage
- The separating parties have a high-conflict relationship
Hiring an attorney may also make it easier to sue the other party if they don’t follow the agreement. It isn’t always easy to find attorneys willing to help enforce separation agreements they didn’t draft.
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Frequently Asked Questions (FAQs)
Do I need to file a separation agreement in court?
No. Separation agreements are sometimes informal affairs limited to the two parties involved. However, if your state allows for legal separation, and you wish to go that route, you must file the proper pleadings. To be sure your agreement is enforceable you need to use an attorney and file it with the court if advised to do so.
Does a separation agreement always lead to divorce?
Not always, but in most cases. A study found that 80 percent of those who separated divorced within three years. Fifteen percent of those surveyed remained separated for 10 years or more without divorce or reconciliation. Only five percent sought reconciliation during separation.
Is it legal to date other people during separation?
It’s not illegal, but it’s complicated and can be risky. States that allow for fault divorces also open the door to separated spouses filing for divorce based on adultery if one of them starts dating. It can also be categorized as infidelity and affect child custody arrangements.
The best course of action is to wait to date until there is a final agreement on your marriage. That keeps you out of legal hot water and allows more time for emotional healing.
How do I revoke a separation agreement?
There are several ways to revoke a separation agreement:
- In writing
- If it has not been filed with the court, by destroying it and all copies
- Reconciling with the other party
- Finalizing a divorce
If a party files for divorce, be aware that the separation agreement terms remain enforceable until the court issues a temporary or final order in the divorce case.
