What Is a Trial Separation?

Learn more about the benefits and impacts of a trial separation.

By , Attorney · Cooley Law School
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If you're experiencing trouble in your marriage, it's not uncommon for one or both spouses to consider filing for divorce. However, if you're looking for a less permanent solution to fixing your troubles, it may be beneficial for you to enter into a trial separation. The separation will only work if you and your spouse outline your intentions and expectations, agree on a timeline, and understand the rules during your time apart.

What Is a Trial Separation?

A trial separation is an agreement between spouses where the couple spends time away from each other. In many cases, during a trial separation, one spouse will move out completely. However, if you can't afford to pay for a second home, spouses can still reside in the same house, with one spouse moving into a spare room. During the separation, you and your spouse will agree on a timeframe in which you will be apart from each other, but you will remain legally married.

A trial separation isn't the same as divorce (or legal separation), and it doesn't have any legal impact on your marriage or property rights. In other words, if either spouse earns money or acquires property during the trial separation, the court will divide it according to your state's property laws if you decide to divorce later.

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:

  • if you're hoping to reconcile, it allows you and your spouse to work through marital issues at a distance
  • it eliminates premature divorce filings
  • it permits both spouses to work through personal issues that may be indirectly interfering with the marriage
  • it helps both spouses understand what living apart would be like if they divorce, and
  • it gives the couple time to regain composure and communication skills before a divorce.

Making A Trial Separation Agreement

Trial separations only work if both spouses are on the same page regarding the timeline, rules, and overall reason 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 it?

A separation agreement is a written document signed by both spouses that explains the rules and timeline for the trial separation. Putting the "rules" of your separation in writing eliminates any confusion on expectations, and it also encourages both spouses to stay on track.

Do you need to make a separation agreement?

It depends. Taking a trial separation is a personal decision for the spouses to make together. If you're on good terms with your spouse and you're confident that you both understand the reasons and expectations from each other during your break, you may not need a written agreement. However, if you divorce in the future, your separation date may be important for your case. If you have a written agreement, there's no question when you separated. In most cases, it's better to have an agreement than not.

What should it cover?

The terms of your separation agreement depend on what your goals and expectations are as a couple. If you plan to separate while you work through issues and the goal is to reconcile, you should include the end date of your separation. You'll also need to discuss whether you're going to continue using joint bank accounts and credit cards, who will stay in the marital home (versus moving out or living in a different part of the house), how you'll handle marital bills, and who will care for the family pets. If you have children, you need to decide which of you will be the primary caregiver, and how and when each of you will spend time with them.

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.

Impact of a Trial Separation on Divorce (If it Goes There)

As discussed earlier in this article, a trial separation does not have the same legal effect as a legal separation. A legal separation (available in most states) is a legal process that changes your marital status (you're no longer married, but you're not divorced. Thus, you can't remarry.) Legal separation permits the court to divide marital property, order financial support, and decide child custody.

A trial separation is not a legal process. Therefore, neither you nor your spouse can ask the court to help to decide the issues during your separation. If you and your spouse earn money, acquire property, receive an inheritance, or incur debts, the court will divide those only after one spouse officially files for divorce.

Although the trial separation itself doesn't impact your divorce, your separation date may. For example, if, during the trial separation, one spouse met someone else and began a relationship, you may not be able to use adultery for your grounds for divorce (if you file in a state that permits fault divorce) or during the property division or spousal support phase of the divorce.

As always, if you have questions about whether a trial separation is right for you or how it will impact you if you divorce later, speak with an experienced family law attorney near you.

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