Separation in Divorce: Trial, Permanent, Legal, And Living Apart

Aug 8, 2012 by

 Separation as it pertains to divorcing couples is a contract between spouses who have agreed to separate and live in different locations prior to a divorce. Much like a divorce, a separation agreement will also address issues of property division, child custody, debts, child support, alimony, visitation and any other issues that need to be resolved in the settlement process. There is some confusion surrounding separation prior to divorce because there are actually four types of divorce separation, with each having its own different effect on division of assets and debts.

A trial separation is kind of like test driving an automobile prior to purchasing it. In a trial separation a couple will test the arrangement of living separately for a while before they make the decision to get back together or separate permanently. Trial separations are informal, not usually court-ordered and have no legal effect on the subsequent distribution of assets and debts, even those accumulated during the trial separation.

Living apart is another form of separation in a marriage. Living apart takes separation one step farther than a trial separation and occurs when the spouses reside in two different homes for an extended period of time with no effort or thought toward reconciliation of the marriage. Different states have different rules concerning the property accumulated and debts incurred while living apart. Some states allow the property and debt accumulated while living apart to be separate property, other states consider it joint property until a formal divorce is completed in court. Several states require a period of living apart as a mandatory prerequisite to filing a no fault divorce.

Permanent separation is the term used when a couple splits up and lives apart permanently. A permanent separation is based entirely on the decision of the married couple and is not usually recognized as legal until one spouse files for a legally recognized separation. In some states assets and debts are considered the sole responsibility of the party who incurred them. Other states consider them joint responsibilities until a formal divorce occurs. Debts incurred to maintain the family home or support dependant children during a permanent separation, yet prior to divorce, are considered joint debts in most states.

A legal separation occurs when the court does not grant a divorce decree but does makes a determination on property division, alimony, child support and visitation issues. Legal separations address the same basic issues as a formal divorce and have the force and authority of the court to back them up. The only difference is that no final divorce is granted in a legal separation.

Sources of Marital Discord Leading to Separation:

    Family problems with children, relatives like in-laws, step-children and grandparents are all sources of marital dysfunction that can grow worse with time.
    Sex in the marriage is important for longevity. Problems with desire, attraction, fidelity, frequency and quality can all put stress on a marriage.
    Every married couple has money problems at times, how they deal with them can make or break a marriage.
    Friends are not always assets in a marriage. Sometimes friends are the source of discord and encourage the demise of a marriage relationship.
    Differences of opinion on how to handle problems with children can be a source of great difficulty in a marriage. The situation gets worse if the children take sides in the disputes.
    Unrealistic expectations placed on the spouse or the marriage will cause ongoing dissatisfaction that will get worse with time.


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