If you’re considering a separation — be it a legal separation or a trial separation — from your spouse, odds are you won’t end up following through on it. When you’re torn between ending and repairing a marriage, a trial or legal separation can seem like a less daunting liminal state between two extremes. But they’re more like divorce dress rehearsals.
“Trial separations are rare, and for good reason; when people physically separate, it makes the legal formality of a divorce that much easier,” New Jersey family law attorney Rajeh Saadeh says.
While separations were once common, they have grown scarce, largely because of changes to America’s healthcare system.
“Legal separation used to have this really important feature that it almost never has anymore, and it was about health insurance,” notes Connecticut divorce attorney Meghan Freed. “It used to be that most corporations and most health insurance plans, if you were legally separated, would allow your dependent spouse to stay on your health insurance.”
Today, separations are most often used by couples whose religious beliefs prohibit divorce. But trial and legal separations could be useful tools in other circumstances as well. If you’re looking to understand the difference between trial separation vs legal separation, want some marriage separation advice, or a just a few hard and fast rules of separation in marriage, here’s what to know.
Marriage Separation in a Nutshell
As the word separation implies, separations are agreements concerning division. They lay out practical plans for how the things shared by a couple are split up when they live separately. That usually means money and property, custody of children — i.e. matters of supreme importance in a marriage. But it can also spell out details like holidays and pets.
If you’re thinking about a separation, research your state laws. They’re not available everywhere. “Legal separation differs from state to state,” notes Jennifer Brandt, a family law attorney practicing in Pennsylvania and New Jersey, says. “Not every state has a legal category or legal separation.”
What is a Trial Separation?
The term “trial separation” is deceptively official, like a dusty stack of forms that get stamped by a notary public and filed in triplicate. But there aren’t documents, set rules, or established procedures for trial separations. The truth is more along the lines of “I’ll be staying at Dave’s for a while but we’ve got to pay the mortgage and get the kids to soccer practices.”
Trial separations are informal agreement between couples outlining their plan for living apart. “Just as every couple is different, every separation agreement is different,” Sarah Bennett, a family law practicing in North Carolina says. “For some couples, the most important issues to address will be child custody and child support, while other couples may wish to focus on ensuring that household bills are paid, and that one spouse has exclusive occupancy and possession of the home.”
How do Trial Separations Work?
Trial separations are underused tools, chiefly due to the expense of maintaining separate residences, says Susan Pease Gadoua, psychotherapist, Psychology Today columnist, and author of the books Contemplating Divorce and The Parenting Marriage Workbook. However, she believes they can help couples, particularly ones caught in power struggles. “It’s a “reboot” not unlike turning off your computer when the windows freeze,” she says. “The hope is to give couples a time out and to start fresh once they get back together.”
Trial separations may be temporary experiments couples undergo to see where things go. “You may go to therapy or just try to work on the marriage,” Brandt says. “It may not have any legal bearing if you’re not proceeding with a dicroce. You may reconcile and it may be like you never separated.”
How do You Set up a Trial Separation?
Trial separations don’t require lawyers. Attorney and founder of California-based mediation firm Off the Record Mediation Services Dorit Goikhman notes that many family court litigants are self-represented. “Courts and legal service agencies often have free or low-cost self-help tools for self-represented family law litigants to assist you in your case,” Goikhman says. But trial separation agreements are binding. “It is highly advisable to engage a knowledgeable family law attorney for your separation,” he adds. “ This is true whether you are asking for a separation through the courts, or entering into a written separation agreement, and it is particularly important if many assets are implicated, or if your situation is more complex than most due to extraordinary factors.”
What Couples Should Keep in Mind About Trial Separation
The most important thing to remember about trial separation agreements is that they have legal implications whether they’re written in a law office or on a kitchen table.
“A separation agreement, even if only temporary, will impact some of the most important aspects of your life: your home, your children, and your financial future,” Bennett says. “The advice of an attorney who understands the complexities of family law will be invaluable in ensuring that you are set up for success, regardless of whether your separation remains temporary or becomes permanent down the line.”
Under ideal trial separation circumstances, Gadoua notes couples live separately for at least six months while the kids remain in the house and household finances stay the same.
“The idea is just to give spouses a break from each other but to minimize disruption to the rest of the family,” she says. She adds that for couples considering divorce, separation can function like aversion therapy by bringing home the harsh reality of what a divorce would really be like. “It’s one thing to fantasize about divorce; it’s another to actually go through a divorce,” she says. “Being alone or having to co-parent from separate homes is not always easier.”
What Is a Legal Separation?
Legal separations are like the black tie only affairs to trial separations’ casual fridays. Whereas trial separations are informal agreements created by couples, legal separations are made in courts and have the full weight of the law behind them. The court divides assets and makes judgments about child and spousal support and can make orders concerning child custody and visitation.
How do You Set up a Legal Separation?
State laws governing separations vary. Couples wishing to separate request separations on legally recognized grounds for separation, which vary from state to state.
“A legal separation is sought and obtained very similarly to a divorce,” Saadeh says. “A request for a legal separation is made in court, and the suit proceeds very similarly to how a divorce is handled and resolved.
What Should Couples Keep in Mind About Legal Separations?
If you’re looking to remarry in a hurry, don’t get a separation. Legal separations can do everything divorces do except formally end the marriage.
“In general, divorce and separation can involve a similar process and can have similar consequences,” Goikhman says. “However, a divorce will actually terminate the marriage, while a separation will not. So if you are separated but not divorced you cannot get remarried.”
Legal separations are so similar to divorces that the agreements reached in separations can be used as blueprints for divorces. “You may be creating a situation where you’re separating in such that it would have some legal meaning later on,” Brandt says. “You have to understand what you’re doing and what that may mean because your spouse may take it as something else and they may use it as something else.”
Since divorce and separation feel so similar, couples sometimes file separations and stay in them for years without divorcing. If they ultimately decide to end the marriage, the terms of the separation influence the terms of the eventual divorce. Imagine a couple who separated in 1995 divorce in 2020. “They separated all of the bank accounts and someone refinanced the house so it’s only in one person’s name,” Freed says. “As a practical matter, they separated things. So even though they’re still married, we shouldn’t share their money the same way we would if they divorced in 1995. They took these steps to memorialize it. But they’re still married. All it is is an argument about how property gets divided.”