Do I Need to Get My Trial Separation in Writing?

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 court order.

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.

Next: 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.