Thinking about taking a break from your marriage? Here's how a trial separation differs from a formal legal separation, and what to put in a separation agreement.
A trial separation is an informal, voluntary agreement between spouses to spend time apart while evaluating whether to reconcile or divorce. Unlike a legal separation, a trial separation doesn't alter your legal marital status, property rights, or financial obligations, and courts play no role in establishing or enforcing it. However, the exact date a trial separation begins can impact how marital property and debts are divided in some states if the couple eventually files for divorce.
How Is a Trial Separation Different From a Legal Separation?
A trial separation is a private, informal agreement between spouses to take time apart. You and your spouse simply agree—orally or in writing—to live apart for a period of time. Your legal rights and obligations as a married couple don't change just because you've started a trial separation.
However, the income, property, or debt you or your spouse acquire during a trial separation might not be split down the middle if you divorce later. Some states stop counting new earnings and property as marital (or community, depending on where you live) property once spouses actually separate, rather than waiting until someone files for divorce. In these states, a couple's "date of separation" is generally based on when they began living apart with the intent to end the marriage, and that date can be during a trial separation.
Because the date of separation can matter so much, a written separation agreement is useful. A signed agreement that spells out when you and your spouse began living apart can serve as evidence of your separation date if you later divorce.
A legal separation, on the other hand, is a formal court process available in most states. The marriage itself isn't dissolved during a legal separation, and neither spouse can remarry, but a judge can issue binding orders on issues like property division, child custody, and spousal support, similar to a divorce.
Learn more about the different types of separation.
What Are the Benefits of a Trial Separation?
The benefits of a trial separation differ from couple to couple. However, it’s common for spouses to feel like a trial separation is beneficial because it:
- gives you and your spouse space to try to work through marital issues
- prevents impulsive and premature divorce filings
- permits both spouses to individually work through issues that may be negatively impacting the marriage
- helps both spouses understand what living apart would be like if they divorce, and
- gives the couple time to learn the communication skills they will need to reconcile or amicably divorce.
How to Make a Trial Separation Agreement
Trial separations work best when spouses agree on a timeline, ground rules, and the overall purpose for the break. One of the most beneficial things you can do is sit down with your spouse and hammer out the details in a written separation agreement.
What Is a Separation Agreement?
A separation agreement is a written document, signed by both spouses, that sets out the expectations and timeline for the trial separation. Putting the ground rules of your separation in writing eliminates any confusion about expectations.
Do You Need to Make a Separation Agreement?
There is no legal requirement to have a trial separation agreement. Taking a trial separation is a personal decision for you and your spouse to make together and you should decide what makes sense for you. However, as noted above, if you divorce in the future, your separation date may be important for your case. A written agreement is evidence of when you separated.
What Should a Trial Separation Agreement Cover?
The terms of your separation agreement depend on your goals and expectations as a couple. Every couple's situation is different, but a good agreement will address both the practical and emotional aspects of living apart, from who pays bills to how you'll communicate during the separation.
It might be a good idea to create a trial separation checklist that contains everything important to you. When you sit down with your spouse to discuss the terms of your separation, you can refer to the list to ensure the agreement meets all of your needs. Your checklist might include:
- the date your separation begins
- a potential end date to the separation if you're hoping to reconcile
- how you'll split the rent, mortgage, utilities, and other marital bills during the separation
- whether you'll continue using joint bank accounts and credit cards
- who will move out of the marital home or into a separate space within it
- if you have children, where they will live and a schedule for parenting time
- who will care for the family pets
- whether either of you will begin dating other people during the separation
- how and when you will check in with each other, and
- whether you'll attend counseling, individually or as a couple, during the separation.
What Is the Impact of a Trial Separation on Divorce?
As discussed above, a trial separation doesn't have the same legal effect as a legal separation. A legal separation is a formal process that allows a judge to make temporary orders addressing issues like child custody and spousal and child support.
A trial separation itself doesn't create any special legal status. In some states, though, anything you or your spouse earns or acquires after you actually begin living apart is treated as separate property, even before either of you files for divorce. In other states, everything acquired up until the divorce is filed is still marital or community property and subject to division. Because this varies so much by state, it's worth understanding how your state defines the "date of separation" before assuming how income or property from this period will be treated.
If you want to start separating your finances and property, a separation agreement can spell that out. A family law attorney can help you understand the law in your state and draft an agreement that matches your intentions for the separation.
