Learn about the different kinds of separation, what they mean, how they affect your legal rights, and how they're different than divorce.
If you're experiencing serious problems in your marriage, you might be considering moving out (or asking your spouse to leave). Or maybe you're already living apart from your spouse. Either way, you'll want to know how separation affects your legal and financial rights and responsibilities.
There are three basic types of separation: trial, permanent, and legal. With all three types, you'll still be legally married. But it's important to understand the differences between them and the consequences for the future of your family and your finances.
Trial Separation
If you and your spouse need a break from the relationship, you may live apart on a trial basis. A trial separation doesn't change your legal rights and responsibilities toward each other and your children. For example, any money you earn or property you acquire will generally still be considered marital property.
By their very nature, trial separations are often makeshift and provisional. Still, it's a good idea to work out an agreement about how you'll handle finances, living arrangements, and other matters. For example, your trial separation agreement might address:
- whether you'll continue to share a joint bank account or credit cards
- how you'll handle expenses and budgeting
- who will stay in the family home
- if you have kids, how and when each of you will spend time with them, and
- whether you'll have a timeline for the trial separation, such as a date when you'll meet to discuss your next steps.
It can seem daunting to write up an agreement like this when you're in the midst of marital difficulties—especially since communication problems are one of the top reasons marriages end. But even making the effort can clarify each of your expectations and help head off future disputes. Also, by having a written agreement that says your separation is a trial one, you should be able to avoid the potential financial consequences of a permanent separation (more on that below).
Permanent Separation
It can sometimes be tricky to know just when your trial separation has become a permanent one. Generally, however, a separation is permanent when at least one spouse has clearly decided that getting back together is not an option.
How Permanent Separation Affects Your Rights
Depending on where you live, a permanent separation might affect your property rights. In some states, for example, assets and debts that spouses acquire after they've permanently separated are considered separate property. When that's the case, those post-separation earnings and assets won't be part of the property division in divorce, and the spouse who took on the post-separation debts will be solely responsible for paying them back.
Why the Separation Date Can Matter
When couples live in a state where permanent separation affects their property rights, they often hotly dispute the exact date when their separation became permanent. For example, the separation date might be unclear when your spouse left in a huff and spent a month sleeping on a friend's couch, but you didn't discuss divorce until the month had passed. That means that if your spouse received a hefty work bonus during that month, you might be able to argue that part of the money belongs to you under your state's laws.
Some state laws have specific requirements for when couples are considered permanently separated. For instance, in California—where earnings and other assets that a spouse acquires after separation are that spouse's separate property—the legal definition of a separation date is when there's been a "complete and final break in the marital relationship." As evidence of that break, at least one spouse must have told the other they intended to end the marriage and then continued behaving in a way that was consistent that intention. (Cal. Fam. Code §§ 70, 771 (2023).)
If you move out of the house and don't expect to get back together, think twice about spending the night together just for old times' sake. A brief reconciliation could risk changing the date of your permanent separation and therefore your property rights.
How Long Can You Be Permanently Separated?
Once you permanently separate from your spouse, you don't have to get divorced right away. You might decide to remain married for a variety of reasons, such as a desire to not disrupt your children's lives or in order to retain insurance coverage. Also, you might need to wait to file for divorce if you live in a state that requires a period of separation before getting a no-fault divorce or any divorce (more on that below).
But if you don't plan to file for divorce soon, it's particularly important—if at all possible—to have a written agreement about the terms of your separation.
Generally, you won't be able to make the agreement part of an official court order unless your state allows some form of legal separation (more on that below). Still, any signed, written agreement is a legally binding contract. And putting your separation-related expectations in writing will help avoid problems down the road. It can also give you a head start on creating a divorce settlement agreement, which could make it easier to take advantage of the time- and cost-saving advantages of an uncontested divorce when you're ready for that step.
Legal Separation
Unlike trial or permanent separations, a legal separation requires going through formal steps with the court, including meeting certain requirements, filing legal papers, and getting final court orders.
Which States Allow Legal Separation?
You may get a legal separation in most states—but not all of them. Some states have procedures that are similar to legal separation but not exactly the same. For instance:
- A few states have procedures that very much like legal separation but go by different names, such as "divorce from bed and board" in New Jersey and Virginia. (N.J. Stat § 2A:34-3; Va. Code § 20-116 (2023).)
- A few other states, including Michigan, allow judges to issue "separate maintenance" orders dealing with issues like alimony, child support, and child custody. (Mich. Comp. Laws § 552.7 (2023).) Depending on the state, however, judges may have limited (or no) authority to address property issues in separate maintenance proceedings.
Very few states—including Florida, Pennsylvania, and Texas—don't have legal separation or a similar procedure.
Legal Separation vs. Divorce
In states that allow it, legal separation is like divorce in some ways and different in others.
- Requirements: The procedures and rules for legal separation are generally the same as when you file for divorce in your state. However, a few state laws have different residency requirements or different legally accepted reasons (grounds) for legal separation than for divorce. For instance, North Carolina allows you to file for divorce from bed and board only for fault-based grounds. (N.C. Gen. Stat. § 50-7 (2023).)
- Orders: As with a divorce, a legal separation will generally address issues like property division, spousal support (or maintenance), child custody, and child support—either based on the spouses' agreement or on the judge's decisions after a trial.
- Remarriage: The most important difference is that even after a legal separation, you're still legally married—which means you aren't allowed to get married to someone else.
Disadvantages of Legal Separation
Getting a legal separation typically involves the same costs as divorce, including filing fees and attorneys' fees if you hire a lawyer to handle your case—which may very well be necessary unless you and your spouse have signed a legal separation agreement before you start the process. Without an agreement, the process can also be just as stressful and time consuming as a divorce.
After all that, you'll still be legally married. So if you do decide to divorce later, you'll have to go through another legal process—with additional costs and time.
Why Get a Legal Separation?
Despite the downsides of legal separation, some people still choose this option for a variety of reasons, including:
- religious beliefs
- a desire to keep the family together legally for the sake of children, or
- an attempt to keep certain benefits that might be lost with divorce.
An important note: If you're considering a legal separation instead of divorce so that you or your spouse can keep health insurance benefits, check with the employer or insurance provider before making the decision. Some insurers consider a legal separation the same as a divorce for purposes of terminating health benefits.
When States Require Separation Before Divorce
The divorce laws in some states require couples to live apart for a certain period of time before a divorce. The details of these requirements vary. For instance:
- In some states, you must be separated for a certain period of time before may file for divorce, while in other states the judge won't issue the final divorce decree until you've lived separate and apart for a period of time.
- You might be able to meet the separation requirement in some states even if you're still living under the same roof as your spouse, as long as the two of you are living completely separate lives, are sleeping in separate bedrooms, and aren't having sex. In other states, none of that matters—one of you must move out and live in a completely separate residence.
- Several states (such as South Carolina) require a considerable separation period before you can get a no-fault divorce, but most of these states (including Illinois) allow you to bypass that requirement if you're filing for divorce based on a ground such as irreconcilable differences or incompatibility. (S.C. Code § 20-30-10; 750 Ill. Comp. Stat 5/401 (2023).)
Protecting Your Rights When Separating
It's important to plan your separation to protect your rights. If you and your spouse are having trouble agreeing about the terms of your separation, mediation might help you work out your differences.
But you might want to speak with a family law attorney if you're wondering whether legal separation is the right step for you, you haven't been able to reach a separation agreement, or you simply want a lawyer to review the agreement you're about to sign to make sure you haven't forgotten anything or given up your rights.
