The Trials of Trial Separations

written by Jim Duzak |

There are no accurate statistics on informal, or “trial”, separations , but it’s obvious that they are quite common. In my law and mediation practices, probably eighty percent of the divorcing couples I worked with had gone through at least one trial separation. A fair number had separated three or four times before throwing in the towel, although in many cases the parties never reconciled, even temporarily; they proceeded directly from the separation to the divorce.

It certainly makes sense, in theory, to see if some good can come from a period of cooling off and reflection. Unless a marriage is characterized by physical or emotional abuse , repeated infidelities, or untreated alcoholism or drug addiction, it’s foolish to file for divorce just because you’ve hit a rough patch in the road . A change of scenery and some breathing room may give you a chance to figure out what’s going wrong and what needs to be done differently (and maybe also to reflect on what’s good about your marriage).

The reality, though, is often at odds with the theory. Instead of using the separation to gain insight and perspective, far too many husbands and wives see it as an opportunity to engage in activities that will make it difficult or impossible to get back together, such as joining online dating sites or seeking out new sexual partners.

And even if they don’t get involved with other people, some separated spouses will create legal messes that can antagonize the other spouse and increase the likelihood of divorce. A wife, for example, may hastily take her kids with her to stay at her parents’ home in another state, not realizing that her action may constitute child abduction. Or a husband may clean out a joint bank account to pay for his living expenses during the separation, not knowing that, under his state’s laws, half of that money is his wife’s. (What might otherwise be legal in banking matters may violate the laws of marital property).

Anyone seriously contemplating a trial separation should first see two people: a divorce lawyer and a marriage counselor. Even if you’re not ready to file for divorce, a lawyer can tell you precisely what you can and cannot do in terms of selling property, withdrawing funds, closing out accounts, enrolling kids in a different school or taking them out of state, and just about any other legal issue that could come up during a separation. A lawyer can also explain your state’s child support guidelines, so that you would know what the law considers reasonable, and a lawyer could point out the advantages and disadvantages of having a legal separation rather than a trial separation.

A marriage counselor can, of course, provide therapeutic services to enhance your marriage and try to keep it together. But a good counselor can also help the two of you come up with a set of rules to govern your separation. The rules can cover such issues as: Who stays and who m...

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