If you’re considering a divorce but aren’t sure it’s the right thing, you may have heard about trial separations.
Some people believe trial separations are simply a way to draw out the divorce process, making things harder for everyone involved. And oft-cited trial separation statistics estimate anywhere from 80 to 87 percent of trial separations end with divorce. But trial separations offer benefits for many couples, helping them evaluate their relationship while leaving their marriage intact.
The choice is yours, and this guide aims to help you think things through. It explains what a trial separation is, the pros and cons and how to set trial separation rules.
What is a trial separation?
A trial separation is an agreement between a married couple to live their lives separately without officially ending the relationship. Trial separations may be informal, with no clear rules or expectations, or backed by a legally enforceable separation agreement. A trial separation is only a “trial” if, after a period of time, the couple decides whether to reconcile or make the separation permanent.
What is the purpose of a trial separation?
Couples enter into separations to part ways without officially divorcing for multiple reasons, including:
- Because a divorce would conflict with their religious or personal beliefs
- To fulfill divorce prerequisites or to provide proof that the court may grant a divorce based on the legal grounds the couple cites
- For financial protections that the couple can’t receive in a divorce
- Because they’re unsure whether they’re ready for a divorce
While a trial separation mirrors divorce in many ways, separated couples can’t remarry others, and divorced couples can.
Pro tip: Before entering into a trial separation, you may want to discuss with your spouse whether getting a divorce is your ultimate goal and whether you want to divorce quickly. If getting a divorce is your ultimate goal, a trial separation may prolong that process. On the other hand, some states’ laws require that couples stay in a legal separation for about six months or longer before they can seek a divorce.
Separating to maintain financial protections
Separating or divorcing a spouse may have significant financial implications. These implications may include:
- Obligations to make support payments
- Being subject to property division
- Paying the cost of finding a new home
But a separated couple may retain certain financial protections, such as the option to stay on each other’s benefit or insurance plans.
Separating to fulfill divorce prerequisites or to prove your right to a divorce
Before a couple divorces, they need to fulfill the residency requirements where they want to file. Many states require that at least one spouse live within the state for at least six months before initiating a divorce. The length of these residency requirements may vary from state to state. If a couple in any state is ready to divorce and hasn’t met their residency requirement, they may opt to unofficially separate until their window for filing is open. And the amount of time a couple has been separated may help them with subsequent divorce filings.
States across the nation provide several legal reasons for granting a divorce. These legal reasons might include adultery, cruelty, mental incapacity, abuse, addiction and the commission of a crime. But two grounds that many states provide for divorce filings that are relevant to a trial separation are:
- There has been an irretrievable breakdown of the marriage without a hope of reconciliation
- The couple lived apart for a certain period of time before filing for divorce
Depending on the laws in your state, a separation for an extended period of time may prove to a divorce court that your marriage is irretrievably broken.
Separating to determine if the couple is ready for a divorce
When a couple is separated but not divorced, the trial separation rules in their state may require the couple’s compliance with custody arrangements, child support orders or spousal support orders. Complying with orders in a legal separation may be an illuminating test run for couples who want to divorce.
By following court orders, a separated couple may see if they’re financially prepared to live apart. And a separated couple with minor children may evaluate their co-parenting skills during a trial separation.
Even if you don’t opt for a legal separation with court orders, an informal trial separation may help you and your spouse determine whether you’re emotionally prepared to go your separate ways. You can tell a lot about your emotional state when your spouse is no longer in the same home or when you know that a divorce is looming. As we have noted in our article on whether a trial separation may be right for you, up to 87% of trial separations conclude with a divorce.
Pro tip: Keep a diary of how you are meeting your financial, parenting and scheduling needs during the separation and how well that is working. This diary may help you determine what relief to request if you and your spouse ultimately decide to divorce. This diary may also help you identify what evidence to provide when arguing for relief in divorce court.
The pros of trial separations
A trial separation doesn’t need to lead to reconciliation to be successful. Below are some ways couples may benefit from a trial separation, whether or not they get back together.
Clarity
Sometimes distance allows you to reframe your perspective and realize the problems you have are solvable. Other times distance provides clarity that things are worse than you realized and divorce is the best outcome for you.
Separating may also inspire partners to explore who they are alone. You may discover you’ve been overly reliant on your partner or that you can do things alone that you thought you couldn’t do.
Less pressure
If you allow yourself and your partner to entertain the idea of ending the relationship, you may find your mindset and attitude softening. Instead of staying together because you have to, you may choose to stay together—or split up—because you want to.
Incentivized change
Separating may interrupt negative habits you built during the relationship, helping you identify and address those habits. Or separating may help you realize that your partner was enabling your bad habits and you need a clean break to take care of yourself.
Separation may also help you understand the gravity of the issues in the relationship. Knowing that the relationship may end if you don’t work on yourself as an individual may spur you to take action.
A safety net
Pursuing trial separation before officially ending your relationship provides the comfort of a safety net—you can go back to your marriage if you decide divorce isn’t for you. Even if you expect your separation to end in divorce, starting with a smaller step may help people who struggle to make that decision know it’s the right one.
The cons of trial separation
On the other hand, trial separation isn’t easy, even when it’s worthwhile. Trial separations may come with several cons, such as the following.
Ambiguity
Ambiguity often is an inherent part of trial separations. You may be uncertain how to act around your partner, what you should and shouldn’t be doing, and when and how the separation should end. You may minimize some ambiguity if you use a legal separation agreement.
Differing expectations
It’s not uncommon for partners to go into trial separations with different expectations and opinions on the possibility of reconciliation. You may be thinking of the separation as a step to make divorce feel more manageable while your spouse may earnestly believe you might work it out. If one spouse has no intention of reconciling, a clean break might be easier.
Inability to move on
Being separated places you in a holding pattern. You may feel unsure of how to move forward when you don’t know what your life will look like in the future.
Prolonged stress
Ambiguity, mismatched expectations and the feeling of being stuck in place can add up to increased stress. In turn, separation can negatively affect health and well-being—sometimes more than divorce can.
Setting trial separation rules
A smooth trial separation often starts by establishing clear rules and boundaries. Writing an agreement with your spouse can keep both of you focused on your separation goals. It may be tempting to use a trial separation agreement template, but the best agreements are carefully tailored to the specific couple.
As you think through the terms of your separation, there are legal issues to address to ensure your financial needs and the needs of your children are taken care of. There are also a number of practical things to consider to help your trial separation go smoothly.
Legal issues
Separation agreements often cover:
- Child custody and visitation
- Maintenance and spousal support
- Property division
Each state has its own laws related to marriage and separation, so you may want to consult a family lawyer familiar with your state’s laws as you work through this. If you intend to modify either partner’s rights with respect to children, spousal support or property, you’ll likely need to get a legal separation agreement to protect your legal interests.
Practical issues
Practical issues may be as important as legal issues when it comes to getting the most out of a trial separation. For example, living apart typically helps you get the space you need to make the separation most effective. However, a trial separation in the same house may work for some, especially when practical concerns like children or finances are involved.
Consider questions like:
- What are you hoping to get out of this separation?
- How will you manage finances?
- Where will each partner live?
- How will you divide shared responsibilities?
- What will you tell others?
- Do you have a deadline to make a decision, and what is it?
- Will you attend therapy or counseling together during the separation?
- Will you date other people?
- How often will you see each other and in what context?
- What personal, romantic or intimate boundaries do you need?
- What boundaries should you set around one partner entering the other partner’s separate space?
- How will you adjust if you need to change the rules you initially agreed to?
How long should a trial separation last?
How long your trial separation should last depends on your personal feelings and the laws in your jurisdiction. For example, couples in Connecticut may cite living apart for 18 consecutive months due to incompatibility as a ground for divorce. But a couple in Vermont needs to live apart for only six months to cite living apart as a valid ground for divorce. And in many states, couples may claim an irretrievable breakdown of the marriage as the reason for their divorce without needing to reach any minimum number of months of living separately.
Also, depending on the facts of their case, a spouse might need to be legally separated for a certain amount of time before they may convert the action into a divorce. In New York, a couple may get divorced after living apart according to a separation judgment and following the terms of the judgment for at least one year. And in Colorado, a couple may convert a decree of legal separation into a divorce after 180 days.
Can you have a trial separation in the same house?
In many cases, you may live together during a trial separation, and in others, you may not. While the law where you live might state that living separately for multiple months creates an irrebuttable presumption that your marriage is irretrievably broken, you may prove the required brokenness in other ways.
You may be able to prove an irretrievable breakdown if you and your spouse affirm to the court that your marriage is broken, even if you’re still living together. Or you and your spouse might engage in a trial separation in the same home by sleeping in separate rooms, handling childcare separately, ceasing to attend social events together and dealing with financial matters separately.
On the other hand, if you live in a state like New York, you may have to have a residence that is separate from your spouse before you may divorce. As we stated above, a New York couple who wants to base a divorce on a separation judgment must have lived apart for at least one year.
Pro tip: Keep detailed notes on how you and your spouse have separated your lives on a day-to-day basis. When you are ready to file for divorce, reviewing these notes with your state’s divorce laws in mind may reveal that there are multiple grounds for your divorce or multiple reasons why you can say your marriage is irretrievably broken.
Trial separation checklist
It may help you prepare for your trial separation if you have a practical checklist. Consider talking to your partner about how you will handle:
- Child custody
- Child support
- Spousal maintenance
- Property division
- Finances
- Living arrangements
- Shared responsibilities
- The narrative about your relationship
- A decision deadline
- Couples counseling
- Dating other people
- Contact with your partner
- Romantic and intimate boundaries
- Personal and spatial boundaries
- Necessary or desired updates to the separation agreement
How a lawyer may help
Only you can decide whether a trial separation is right for you. It may provide needed clarity, allowing you to move forward with confidence, or drag out the unpleasant aspects of separating, leaving you unsure of where you stand.
Talking to an experienced family lawyer who knows your state laws may make deciding whether to pursue a trial separation easier. An attorney may help you understand your legal options, including the availability of legal separation. A lawyer may also draft your separation agreement and ensure it addresses what it should. And they’ll help you understand the consequences of whatever decision you make.
