Most people know what a separation is: a married couple living apart but remaining legally married. But did you know that there are actually three different types of separation? Trial, permanent, and legal separations all mean very different things, and which one you choose may impact your divorce proceedings, should you and your spouse choose to pursue a divorce down the line. Here’s what you need to know about the different types of separation so that you can decide which one you and your spouse should pursue until you make a decision about a divorce.
Many couples undergo a trial separation when considering a divorce. This is when the couple mutually decides to live apart while they determine whether they can reconcile or should file for divorce. During a trial separation, all property and income are treated the same way as they would be treated if you were living in the same household—because, of course, you’re still legally married. This means that if you buy a car after you’ve separated, your spouse is legally a joint owner of that vehicle. It also means that your paychecks are considered a marital asset, and will be divided as such if you divorce later on.
If you and your spouse wish to undergo a trial separation as you make your decision about your future together, it’s a good idea to write up an informal agreement about issues pertaining to finances and property. For example, you should agree on whether to continue sharing a bank account and credit cards, how spending will be budgeted for both of you, which of you will stay in your marital home, what expenses you will share, and so on. You’ll also need to make a decision about how time with your children will be divided during the separation, if you have any kids together.
If you went through a trial separation together and determined that you wouldn’t be able to reconcile, but you haven’t yet filed for a divorce, then your trial separation has become a permanent one. Depending on how long you’ve been separated, some states have laws that alter how property rights between spouses are handled.
If you have no intention of getting back together, debts and assets acquired during your separation are the sole responsibility or property of the spouse who acquired them. This means that you wouldn’t be held liable for any new debts your spouse incurred after your separation, and your spouse would not be entitled to any portion of property or income you acquired after you separated.
Because of how the shift from trial separation to permanent separation can impact property rights, the date of this change in your relationship is often a major point of disagreement in divorce courts. So, it’s important that you keep a record of your discussion with your spouse and make note of exactly when you decided not to reconcile. This would be considered the date of separation.
Determining the date of separation can get messy, since many couples will go back and forth on the issue for a while. For example, let’s say you and your spouse decide to separate on a trial basis, and they move in with their parents. After a month, you decide there’s no hope of reconciliation and decide you want a divorce. This is the date of separation. But two weeks later, you and your spouse have another conversation and decide to give your marriage another try. They move back in for two weeks before you decide, once again, that divorce is a better option. This then changes the date of separation, which would mean income, assets, and debts acquired between the former date of separation and the new date of separation are now shared.
Florida does not actually offer legal separations. However, this is an option available in some states, so we’ll still offer some basic information on it. A legal separation can be acquired by filing a request in family court. This would put court orders in place regarding property division, alimony child custody, child support, and so on, just like a divorce. However, you are still legally married.
There are many reasons to choose a legal separation over a divorce. For some couples, the reasons are religious, while for others, their reasons are based on matters like one spouse needing to stay on the other spouse’s health insurance plan.
If you and your spouse are separating, we invite you to contact us for a consultation. We’ll advice you on how to protect your assets during a separation, and we’ll be there for you if you decide a divorce is the best option for your family. Give us a call today.