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Is Marital Separation an Option?

If you are no longer happy in your marriage, you may be considering your options, including counseling, separation and divorce. If you're seriously considering separation, it's important to understand the various types of marital separation.

Types of Marital Separations

There are four types of marital separation, though there is some overlap in definitions:

  • Living apart
  • Trial separation
  • Permanent separation
  • Legal separation

When a couple is living apart or living separately, they reside in separate residences. If the couple is considering reconciliation, then it would be considered a trial separation. If the couple does not intend to reunite, it would be considered a permanent separation.

A trial separation, sometimes called a temporary separation, occurs when a couple has not decided whether to continue or end their marriage. In a trial separation, a couple will live apart (often for a predefined period of time) while deciding whether to mend their marriage or take steps to split up. It is important to understand that any debts incurred or assets acquired during a trial separation will be considered community property owned by both spouses.

A permanent separation occurs when a married couple has no intention of living together as husband and wife. Many couples will begin living apart in a trial separation that turns into a permanent separation. State laws vary in how they view the assets of couples who are permanently separated. In some states, the debts you incur while permanently separated, and the assets you acquire, are your sole property. In other states, the assets are still considered to be joint property and each spouse is potentially liable for the debts incurred by the other spouse.

A legal separation, which is a type of permanent separation, is fundamentally identical to divorce except that you remain legally married to your spouse. In a legal separation, as in a divorce, the court will determine the rights and responsibilities of each spouse. The court will decide:

  • Whether either party is entitled to spousal support
  • How child custody and visitation will be handled, and whether one spouse is entitled to child support, if applicable
  • How community property will be divided between spouses

Most states allow couples to file for legal separation (also known as judicial separation in some areas), but the legal requirements vary considerably from state to state. A divorce lawyer who has experience handling legal separations can advise you about your state's requirements, while also advising you of the pros and cons of each type of marital separation.