There are three types of separation: trial, permanent and legal. Depending on the state laws and circumstances, these types may exist independently or overlap.
Legal Separation
Legal separation allows a couple to live separate lives while remaining married under the law. This arrangement enables them to keep some benefits of marriage (support and insurance) while carrying on independently. A legal separation is usually a permanent arrangement or a step on the path to divorce.
A legal separation is filed in court and approved by a judge, much like a divorce. Once approved, the order outlines terms like property division, debt responsibility, child custody, and support payments. Most legal separations occur by agreement but it is also possible to file for one and have a trial if your spouse does not agree.
Many couples legally separate and then go on to divorce. In this situation the terms of the separation usually become the terms of the divorce. In some states legal separation is used as a grounds for divorce.
Legal separation isn’t an option in all states. Delaware, Florida, Georgia, Mississippi, Pennsylvania, and Texas do not recognize legal separation.
Trial Separation
A trial separation allows parties to live apart while they consider reconciliation. This arrangement is usually only a physical and emotional separation. Legally, marital property laws still apply. For example, any property acquired after separation is still community property of the marriage rather than separate property.
The parties don’t need to file a trial separation in court, but they may wish to. It is a good idea to draft a separation agreement that determines who stays in the family home and has access to joint accounts. The agreement provisions should also address splitting expenses and child custody and visitation as well as spousal and child support.
If the trial separation ends with divorce, the agreement offers a template for settling the divorce. That can save time and money on attorney fees.
Permanent Separation
A trial separation can become a permanent separation. Also, in some states, the law may consider you permanently separated if you remain separated but never divorced. A permanent separation may also be a legal separation if a separation agreement is filed or a separation decree is obtained in court.
The most critical element of a permanent settlement is its effective date. If the parties go on to divorce, the separation date is usually used as the date of valuation for all marital assets. Additionally in community property states, property acquired after the date of separation is usually considered separate property, not marital property and is not divided in the divorce.
This division also applies to debts. New car loans, credit cards, or signature loans taken out by an individual after separation usually are their sole responsibility.
A separation agreement proves vital in these arrangements too. It clearly establishes the date of separation. The agreement usually includes other essential terms, such as the division of marital property and debts and decisions about child custody and visitation as well as spousal and child support.
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