There may be plenty of pit stops on the way to finalizing (or even initiating) a divorce. And one major pit stop for many couples is a trial separation. Sometimes, a trial separation involves just living apart from your spouse, while other separations include court orders that divide assets between spouses and spell out their custody and child support rights and obligations.
A trial separation may be a handy tool for many married couples who are at crossroads in their relationships. In this article, we go over why a couple might want to opt for a trial separation in lieu of or before a divorce and what setbacks there might be in a trial separation.
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Published on August 13, 2024 · 7 min read
Key takeaways
Depending on your state’s divorce laws, a trial separation may be necessary to prove that you and your spouse have grounds for a divorce.
A trial separation may have all the same characteristics as a divorce except for the ability to remarry.
Some couples may have the option to engage in a trial separation without living in different homes, but it depends on their state’s laws.
What is a trial separation in a divorce?
What is the purpose of a trial separation?
Couples enter into separations to part ways without officially divorcing for multiple reasons, including:
Because a divorce would conflict with their religious or personal beliefs
To fulfill divorce prerequisites or to provide proof that the court may grant a divorce based on the legal grounds the couple cites
For financial protections that the couple can’t receive in a divorce
Because they’re unsure whether they’re ready for a divorce
While a trial separation mirrors divorce in many ways, separated couples can’t remarry others, and divorced couples can.
Pro tip: Before entering into a trial separation, you may want to discuss with your spouse whether getting a divorce is your ultimate goal and whether you want to divorce quickly. If getting a divorce is your ultimate goal, a trial separation may prolong that process. On the other hand, some states’ laws require that couples stay in a legal separation for about six months or longer before they can seek a divorce.
Pro tip: Before entering into a trial separation, you may want to discuss with your spouse whether getting a divorce is your ultimate goal and whether you want to divorce quickly. If getting a divorce is your ultimate goal, a trial separation may prolong that process. On the other hand, some states’ laws require that couples stay in a legal separation for about six months or longer before they can seek a divorce.
Separating to maintain financial protections
Separating or divorcing a spouse may have significant financial implications. These implications may include:
Obligations to make support payments
Being subject to property division
Paying the cost of finding a new home
But a separated couple may retain certain financial protections, such as the option to stay on each other’s benefit or insurance plans.
Separating to fulfill divorce prerequisites or to prove your right to a divorce
Before a couple divorces, they need to fulfill the residency requirements where they want to file. Many states require that at least one spouse live within the state for at least six months before initiating a divorce. The length of these residency requirements may vary from state to state. If a couple in any state is ready to divorce and hasn’t met their residency requirement, they may opt to unofficially separate until their window for filing is open. And the amount of time a couple has been separated may help them with subsequent divorce filings.
States across the nation provide several legal reasons for granting a divorce. These legal reasons might include adultery, cruelty, mental incapacity, abuse, addiction and the commission of a crime. But two grounds that many states provide for divorce filings that are relevant to a trial separation are:
States across the nation provide several legal reasons for granting a divorce. These legal reasons might include adultery, cruelty, mental incapacity, abuse, addiction and the commission of a crime. But two grounds that many states provide for divorce filings that are relevant to a trial separation are:
There has been an irretrievable breakdown of the marriage without a hope of reconciliation
The couple lived apart for a certain period of time before filing for divorce
Depending on the laws in your state, a separation for an extended period of time may prove to a divorce court that your marriage is irretrievably broken.
Separating to determine if the couple is ready for a divorce
When a couple is separated but not divorced, the trial separation rules in their state may require the couple’s compliance with custody arrangements, child support orders or spousal support orders. Complying with orders in a legal separation may be an illuminating test run for couples who want to divorce.
By following court orders, a separated couple may see if they’re financially prepared to live apart. And a separated couple with minor children may evaluate their co-parenting skills during a trial separation.
Even if you don’t opt for a legal separation with court orders, an informal trial separation may help you and your spouse determine whether you’re emotionally prepared to go your separate ways. You can tell a lot about your emotional state when your spouse is no longer in the same home or when you know that a divorce is looming. As we have noted in our article on whether a trial separation may be right for you, up to 87% of trial separations conclude with a divorce.
Pro tip: Keep a diary of how you are meeting your financial, parenting and scheduling needs during the separation and how well that is working. This diary may help you determine what relief to request if you and your spouse ultimately decide to divorce. This diary may also help you identify what evidence to provide when arguing for relief in divorce court.
How long should a trial separation last?
How long your trial separation should last depends on your personal feelings and the laws in your jurisdiction. For example, couples in Connecticut may cite living apart for 18 consecutive months due to incompatibility as a ground for divorce. But a couple in Vermont needs to live apart for only six months to cite living apart as a valid ground for divorce. And in many states, couples may claim an irretrievable breakdown of the marriage as the reason for their divorce without needing to reach any minimum number of months of living separately.
Also, depending on the facts of their case, a spouse might need to be legally separated for a certain amount of time before they may convert the action into a divorce. In New York, a couple may get divorced after living apart according to a separation judgment and following the terms of the judgment for at least one year. And in Colorado, a couple may convert a decree of legal separation into a divorce after 180 days.
Also, depending on the facts of their case, a spouse might need to be legally separated for a certain amount of time before they may convert the action into a divorce. In New York, a couple may get divorced after living apart according to a separation judgment and following the terms of the judgment for at least one year. And in Colorado, a couple may convert a decree of legal separation into a divorce after 180 days.
Can you have a trial separation in the same house?
In many cases, you may live together during a trial separation, and in others, you may not. While the law where you live might state that living separately for multiple months creates an irrebuttable presumption that your marriage is irretrievably broken, you may prove the required brokenness in other ways.
You may be able to prove an irretrievable breakdown if you and your spouse affirm to the court that your marriage is broken, even if you’re still living together. Or you and your spouse might engage in a trial separation in the same home by sleeping in separate rooms, handling childcare separately, ceasing to attend social events together and dealing with financial matters separately.
On the other hand, if you live in a state like New York, you may have to have a residence that is separate from your spouse before you may divorce. As we stated above, a New York couple who wants to base a divorce on a separation judgment must have lived apart for at least one year.
Pro tip: Keep detailed notes on how you and your spouse have separated your lives on a day-to-day basis. When you are ready to file for divorce, reviewing these notes with your state’s divorce laws in mind may reveal that there are multiple grounds for your divorce or multiple reasons why you can say your marriage is irretrievably broken.
You may be able to prove an irretrievable breakdown if you and your spouse affirm to the court that your marriage is broken, even if you’re still living together. Or you and your spouse might engage in a trial separation in the same home by sleeping in separate rooms, handling childcare separately, ceasing to attend social events together and dealing with financial matters separately.
On the other hand, if you live in a state like New York, you may have to have a residence that is separate from your spouse before you may divorce. As we stated above, a New York couple who wants to base a divorce on a separation judgment must have lived apart for at least one year.
Pro tip: Keep detailed notes on how you and your spouse have separated your lives on a day-to-day basis. When you are ready to file for divorce, reviewing these notes with your state’s divorce laws in mind may reveal that there are multiple grounds for your divorce or multiple reasons why you can say your marriage is irretrievably broken.
How an attorney may help
Some couples may choose to talk to just each other before entering a trial separation, but others might find the guidance of an attorney helpful. An attorney may help the couple crystallize their reasons for seeking a trial separation and identify effective ways to engage in a trial separation so that they may achieve their legal goals. An attorney may also review the positives and negatives of getting a divorce vs. a separation. And a lawyer may educate a couple on how long their separation must last and the steps they must take to convert a separation into a divorce.
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