Most married couples will attest that
marriage is hard. It takes work to maintain a happy, healthy marriage, especially when life
deals its blows. Normal life challenges, such as career ups and downs,
childrearing, financial difficulties, health issues, accidents, and so
on will challenge a marriage to the core.
Sometimes when things get so stressful between a couple, they’ll
decide to take a break from each other to test the waters; to see if they
would be happier apart or if they truly should work on saving their marriage.
For some couples, a physical separation can be relatively painless when
they don’t own a home, they have few assets, and they don’t
have any children together. But, when you add a house, children, and other
valuable assets, spouses can be reluctant to split up because they’re
concerned about these factors.
Should I Get a Written Agreement?
Before filing for
divorce, a lot of couples decide to have a trial separation period. They use this
time to clear their heads, think about what they really want out of life,
and reevaluate their marriages. They use this trial separation to eliminate
the daily anxiety, the continuous arguing, and the resentment toward their
spouse that plagues their lives.
During the “trial” separation period, the couple will come
to one of two conclusions: 1) they love each other and realize that divorce
would be a mistake, or 2) they are happier without each other and divorce
is the best solution. So, what do they do in the meantime? Do they draw
up a formal separation agreement, or do they forgo one?
In our experience, a significant percentage of couples who go through a
trial separation do end up getting divorced. Whether a couple decides
to become legally separated indefinitely, or file for divorce eventually,
they will still have to tend to their marital obligations while they are
living separately and apart, but are still married.
Marital obligations include, but are not limited to:
- Paying the lease or mortgage
- Child custody
- Child support
- Paying off marital debt
- Maintaining life insurance
- Having an estate plan (e.g. a will and a trust)
- Paying health insurance
- Taking care of the family pets
- Working to pay the family’s bills
- Paying the family’s monthly bills
- Handling marital assets
- Paying state and federal taxes annually
If you are considering a trial separation, you’ll have to tend to
the above issues and it can be a lot harder to do it when you’re
living separately. Not only that, but it can be harder to control your
marital assets and debts if your spouse makes a financial decision that
you do not approve of.
To maintain order, protect your best interests and minimize the risks involved
in a trial separation, we strongly encourage a “legal separation,”
which involves a formal separation agreement, which becomes a legally-enforceable
Protecting Your Best Interests
Some couples decide to opt for a “trial separation,” an informal
arrangement where they don’t get the courts involved while they’re
living separately, but unfortunately, when people are seriously considering
divorce, they tend to become disillusioned and don’t stay true to
their word. If your spouse makes an oral agreement during your trial separation
and he or she changes their mind, you can be left with no legal remedy.
For example, suppose a man promises his wife that he’ll pay her $1,000
a month to help support the children while they’re apart. Instead,
he starts dating someone new and his girlfriend convinces him not to pay
child support until the courts force him to. Or, suppose a wife tells
her husband that if she can stay in the house with the kids, she’ll
find a job and she’ll pay the mortgage, but that never happens.
As a result, the mortgage is late, it hurts her husband’s credit,
and he has to come up with the money, while paying for his $2,500.00 a
month one-bedroom apartment at the same time – now he’s virtually broke.
Between giving his wife cash for the kids, paying the mortgage, and paying
for his apartment, the husband can barely breathe. Without an attorney’s
advice and a written agreement, he has little control over his situation,
especially since courts find it difficult to enforce oral agreements.
Legal Separations Involve Court Orders
Not all states allow for legal separations, but California is one of the
states that does. In California, when you get a “legal separation,”
a petition is filed with the family court, asking for you to be legally
separated from your spouse. A legal separation in California is very similar
to a divorce petition and addresses all the same issues, such as:
If you file for legal separation, you will follow the same steps as a divorce
petition; your spouse would have to be served with the petition for a
legal separation. Like a divorce, when the negotiations are complete,
the judge will sign a written court order that will address all of the
terms that you and your spouse agreed upon. Or, if you couldn’t
agree on the terms, it will lay out the terms that the judge had to decide
for you both.
Marriage Fails: Is Yours on the List?
The key advantage of a legal separation over an informal separation is
you have a legally-enforceable agreement. If your spouse fails to abide
by the agreement, you can take him or her to court because you have a
legal remedy. “How is a legal separation different than a divorce?”
They are almost identical except for one big thing: You are still legally
married. So, neither of you can remarry until you obtain a divorce.
Contact Claery & Hammond, LLP to schedule a
free consultation with an experienced Los Angeles divorce attorney.