When a couple can still effectively communicate and are good candidates for mediation, they may also be good candidates for marriage separation. The resulting agreement is like divorce; the couple will live separately, divide marital assets and debts, set child support amounts, and create a child custody arrangement. However, marital separation is not final and if the couple is not one hundred percent sure about divorce, it offers a way for both parties to take time for thought, more discussion and perhaps resolving their differences. Like divorce, the separation from a spouse by a legal separation agreement is court ordered, but it is not final.
Marriage Separation vs. Divorce
While division of property and major decisions about childcare and upbringing are resolved upon signing a marriage separation agreement, there continue to be some ties until such time the couple formalizes a divorce agreement:
- Marital separation means the couple is still married and neither is legally eligible to remarry.
- On tax forms, each person must still claim to be married and pays taxes accordingly.
- If one spouses dies, the other is still entitled to inherit that person’s assets.
- If a married woman gives birth during the legal separation period, that child is also the child of the other spouse unless proven otherwise.
- Each person can continue to receive medical, dental, or other insurance benefits normally available to a married spouse by the other person’s insurance.
- Each is also entitled to social security or pension payments normally available to the other person in the event of a death.
For some couples, resolving big issues like money or simply having a long period without the other person could lead to reconciliation. When divorce is inevitable, the most difficult part of the process is often behind the couple once the contentious issues have been resolved. A divorce agreement is final and should the couple decide to work out their differences, they would do so as single individuals.
In New York state, a marriage separation is not required prior to divorce, but in other states, it always precedes it. In fact, in some states, after a set period, varying from six months to one year, the terms of a marriage separation convert to a legal divorce.
Couples working together through mediation can choose either option. The goal of a mediator is not to convince either spouse that one method is better than the other. Mediation serves to help the couple work through the terms that are addressed in a legal separation, namely finances, custody, child support, child visitation, etc. Court intervention is not required for a trial separation which merely entails both parties living apart; however, if the couple finds they are having difficulties resolving childcare and other custodial issues, moving towards a legal separation is a more favorable option.
At a time when many couples are dealing with the added stress of job loss, isolation, school closings, lack of social life and financial stress, heightened anger and disagreements are natural biproducts of lockdowns and an economic downturn. The couple may find that a marriage separation offers a way to take a break while things are tense and see if improved living conditions ease the tension in their marriage.
