How to Prepare a Trial Separation Agreement
You and your spouse have been dealing with some bumps in your marriage and have decided that a trial separation could give you important breathing space, time to cool down, and time to decide where you want to go from here.
But a separation without rules can be confusing and even harmful – particularly if you’re trying to preserve your relationship in the long run. Putting a structured trial separation agreement in place can help keep the two of you working out of the same playbook.
Getting ready for a trial separation
A trial separation is an informal time-out from your marriage. And it’s this informality that can lead to problems when there aren’t rules in place for you and your spouse to follow.
If you’re experiencing serious problems in your relationship, trying to work cooperatively to design some structure around your separation may seem counterintuitive. But that’s precisely what you should do if you want your separation to be effective.
What are your goals? What do you hope to achieve? Will the two of you try couples counseling? And at what point will you reevaluate your relationship and make a more binding decision? These are just a few of the things you should consider as you draft a trial separation agreement.
Drafting an agreement
A trial separation isn’t a legal transaction, but it’s important to understand what is expected from both of you during your time apart. Even an informal agreement that lays down the ground rules for your separation in black and white can be helpful. Both you and your spouse should understand and mutually agree to these rules.
A trial separation agreement should map out and provide for many of the same things a divorce settlement agreement does.
The following are questions you should ask yourself before separating. Consider including the answers to these questions in your separation agreement.
- Who will live in the family home?
- How will you structure your financial life to accommodate separate living quarters?
- If you decide to separate in the same house, how will you handle two separate living areas for each of you?
- What are your rules regarding dating others?
Child custody and visitation
- When you have children, you must consider the kids in your separation plans. How will you create a co-parenting plan so both get time with the kids?
- Where will they live primarily?
- Will they go back and forth between you, or will one of you come to them?
- How will you handle birthdays and holidays?
- Will you continue to share in child-related decision-making, or will one of you take it over?
- Perhaps most important of all, how will you structure your separation so the kids can maintain a sense of calm and stability during this time?
- During your separation, you’ll probably be maintaining two households for a while. Who will be responsible for the mortgage and utilities for the family home?
- Will one of you pay child support or spousal support to the other?
- What about repairs or maintenance issues that might arise?
- If you have children, who will be responsible for childcare costs?
Division of assets and debts
- Before a break-up – even a temporary one – it’s helpful to understand the concepts of marital and separate property. Will you divide some of your marital property temporarily?
- How will you handle joint bank accounts and credit cards?
Duration of separation
How long will your separation period last? You may not choose to have an official “end date,” but you should at least agree to a time you will reevaluate what you’ve discovered in your time apart and how you want to proceed.
When that time comes, it may be helpful to ask yourself some pre-planned questions. Here are ideas:
- Do you feel you’ve made any progress?
- Do you think other interventions could be helpful, like couples therapy?
- If you've tried couples therapy, has it been helpful?
Although your trial separation isn’t a legal action, you can draft this agreement and sign it before a notary. Each of you should retain a copy.
A legally binding document
What can you do if your spouse doesn’t abide by the rules of your trial separation agreement?
A trial separation may be simpler, but it’s not legally enforceable if one of you doesn’t keep your side of the agreement. A legal separation is a court order that allows you to live separately with an option for reconciliation but with legally enforceable terms.
Not all states recognize legal separations, however. Delaware, Florida, Georgia, Mississippi, Pennsylvania, and Texas do not allow couples to file for legal separation. In these states, you only have the option of trial separation or divorce. Furthermore, Indiana allows legal separation, but it is only valid for 12 months. After that time, you must decide whether to reconcile or file for divorce.
It’s critical that you understand the laws for your state jurisdiction when making the decision to separate.
A trial separation can leave you feeling vulnerable and confused about your rights. We’re here to help. At Hello Divorce, we are more than just online divorce plans. We have other legal and professional services available for people just like you. Need help? Schedule a free 15-minute call to learn more.
ResourcesAlternative Dispute Resolution. Office of Court Services.
Legal Separation. Cornell University Legal Information Institute.