Separation As An Alternative To Divorce
If you're thinking about a temporary separation, to see if your marriage is reconcilable, then you've probably read our articles about the risks. On the one hand, a temporary separation allows you and your spouse some space to think about what you each truly want out of your marriage. On the other hand, a legal separation can easily transform into a new, and bad, status quo; double expenses; and muddle expectations.
While they may be helpful in the short run, every day must bring the two of you closer together or further apart — otherwise, the risks of confusing your children, establishing a support pattern and setting expectations that you will be the secondary, or "visiting," parent take over.
If you are thinking about a legal separation and are unsure if the option suits your needs, call us for a free consultation. Send us an email to schedule your appointment.
Factors You Need To Consider
Those are the most obvious risks, but there are less obvious, but just as common, risks, too:
Accumulating Assets — While you are separated, you should assume that any asset you and/or your spouse acquire, except some gifts and entirely segregated inheritances, is marital property to be divided equally between the two of you. This rule is not intuitive because most spouses will expect that their property rights were defined at the time they separated, since their decision to divorce is, in their minds, really an extension of their decision to separate. However, the rule is property is to be divided if it came to be between the date of the marriage and the date of the divorce, NOT the date of separation. While some states allow judges to fix the date at an earlier date, such as the date of separation or some date in between when it became clear the couple would not reconcile, this is but an exception to the rule.
What's worse — if you stop contributions toward your retirement to get around this rule, most states will treat your actions as "in anticipation of divorce" and will divide your retirement as if you had made those contributions. The best approach, therefore, is to make the separation short and decide soon whether to reconcile or file for divorce.