Sometimes, couples feel they are no longer compatible. A spouse may have breached a marital rule or find their differences irreconcilable. In many cases, these relationships can end in divorce.
However, other couples find that creating a separation agreement before divorce is their best option. It allows them to live separately and apart and figure out where they stand in their relationship. It can also provide a sense of stability for their children if they have any.
During this period of separation, couples can also maintain the benefits of staying married to one another. These can include benefits relating to:
- Health insurance
- Life insurance
- Pension plans
- Social Security
- Tax
Divorce can be a long, time-consuming, expensive, and emotionally draining process. Couples have to make life-changing decisions under these conditions, making reaching a fair and amicable agreement difficult. For these reasons, separating can be a much more favorable option.
Separation agreements detail how a couple’s life will look like when they separate by addressing multiple issues:
- Child care
- Financial responsibilities
- Child custody
- Child support
- Spousal maintenance
- Separate living arrangements
A couple can also turn a separation agreement into a divorce decree if they decide to divorce.
Here is a list of the four reasons to file a separation agreement rather than jumping straight to divorce.
1. Protects Your Marital Benefits
Separated couples can continue to receive spousal benefits that help them both financially. This is one of the primary reasons for entering into a separation agreement, as it allows couples to maintain their quality of life.
There can be more reasons for separating, and they can be as simple as wanting to continue your life with your married name intact. Or they could be as complicated as staying married due to religious beliefs or moral reasons.
Filing joint taxes
One of the most significant financial advantages of getting married is that couples can receive tax benefits when they file jointly. The IRS awards joint filers with more significant yearly tax deductions, which allows them to have a lower tax liability. Ultimately, married couples can keep more of their income after tax.
Married couples could also qualify for tax credits such as:
- Earned Income Tax Credit
- American Opportunity and Lifetime Learning Education Tax Credits
- Exclusion or credit for adoption expenses
- Child and Dependent Care Tax Credit
When you’re separated, you’re legally married. So you’d still be able to enjoy these tax benefits.
Spousal retirement plans
If you’re married and your spouse has a pension, you are entitled to a share of each other’s pension amount. The longer you’re married, the greater your entitled amount. However, when you divorce, neither can receive any future benefits.
If you do not intend to remarry, you can get separated. Doing this ensures you can still take advantage of the spousal benefits of a retirement plan.
Social security payments
Staying married may help separated spouses recover higher amounts of social security payments. Starting at 62, a separated spouse who has not remarried can receive social security benefits. Or they can receive 50% of what the ex-spouse is entitled to based on their work record. To receive social security benefits, you must have been married for at least ten years.
Many marriages have a disproportionate income for one spouse if the other spouse did not work, worked intermittently, or got paid less overall. Couples near that ten-year mark and on good terms with each other can wait until they cross the threshold and then divorce.
Health insurance
While separated, any health care coverage maintained as a married couple will continue. This can be an enormous benefit, particularly if one spouse would have difficulty obtaining separate and affordable health care coverage independently. Note that a legal separation may have the same effect as a divorce for some employers, and health insurance benefits will not continue for the separated spouse. So it’s best to check with the relevant parties if you’d still be eligible for benefits if you decide to separate.
2. Provides an Opportunity for Reconciliation
When a couple decides to separate, they may not be sure about getting a divorce. In some situations, they want an opportunity to have some time to reflect on their relationship. This scenario tends to leave room for couples to reconcile after separation.
One of the reasons for legal separation is that a separation agreement creates financial and familial obligations similar to a divorce decree. During this time apart, couples considering divorce can see if it’s the right option.
Separating (and maybe divorcing) can be a life-altering choice. Couples may consider marriage counseling during this period.
But it’s also a period where they can also rediscover themselves as an individual. Spouses can return to pursuits or hobbies they enjoyed before marriage. They may also benefit from individualized therapy during this time. This can lead them to examine their lives and consider whether reconciliation is possible.
3. Gives You Time To Sort Out Divorce Terms
The separation agreement can be a precursor to divorce by establishing responsibilities and expectations for both spouses. During the divorce process, emotions can run high, and couples can be under time constraints or pressure to agree quickly.
The terms of divorce must include provisions regarding:
- Child Custody
- Spousal Support
- Child Support
- Property Division
You may enjoy the luxury of having time to hash out the details, especially when those issues are complex. For example, you could have strong attachments to a specific property and appreciate being able to negotiate how you’d like to divide it without pressure. You could then eventually come to a mutually beneficial agreement with your spouse.
Once a legal separation is in place, you can decide when to divorce and use the terms from the separation order instead of negotiating new terms.
4. Lessens Impact on Children
Depending on how contentious a divorce becomes, it can have a negative effect on children. Divorce can take a significant emotional toll and change children’s lives.
Examples of the impact divorce can have on children’s lives include:
- Moving out of the family home
- Changing schools
- Poor academic performance
- Losing friends
- Confusion
- Feelings of guilt
- Animosity toward parents
- Witnessing parental disputes
- Struggling with future relationships
- Fears of abandonment
- Anger or irritability
- Destructive behaviors
- Uncertainty about living arrangements
- Withdrawal from social activities
- Depression
- Generalized anxiety
Some couples may opt for a “trial separation” to gauge the effect on their children. They can also see if their decisions around their separation work well in their day-to-day lives. For example, they can create a parenting plan to arrange primary residential custody or create workable parenting schedules.
Separation isn’t as final as divorce and can lessen the impact on a child’s well-being. It eases them into the life changes they will soon be experiencing. The separation may be the precursor to a divorce that will happen in the future when it is less disruptive to a child’s life.
A couple may decide to separate but wait for their children to finish the school year before the divorce process begins. They can also start children’s counseling during separation and before the divorce. The couple can also create an agreement where they are separated but live in the same house to maintain stability for their children.
Parenting through a divorce instead of separation can be difficult. It can be challenging for parents to focus on their children when their lives are being upended.
Separation before divorce leaves room for adjustments when caring for children. For example, couples can address unexpected expenses related to their children, such as child care and education. With a separation agreement, they can outline how to manage their finances to handle those fees.
Separation Agreement Frequently Asked Questions
When is separation a good idea?
Many financial factors can make a separation a suitable option for couples. They would have to consider issues such as:
- Their income
- The distribution of assets
- Familial responsibilities (childcare, education fees, etc.)
Sometimes, couples may continue living together in the same family home to avoid taking a financial loss on the property.
Divorce negotiations can become contentious and lead to outcomes that please neither party. By navigating the above issues in a separation agreement, spouses can discuss complicated matters more peacefully.
If couples agree on separation terms, they can save time and money on court fees. The separation agreement can become the divorce decree, speeding up the divorce process. Some states require you to wait six months before a divorce becomes final. There is no waiting period for a legal separation when you want to separate.
Do you need a separation agreement before divorce?
While you can usually get a divorce without a separation agreement, separation proceedings are handled differently in each state. Some states require a period of separation before a couple can file for divorce.
Check your state or government website for more specific information about the separation process.
Can I get a legal separation without a lawyer?
Yes, you can get a legal separation without a lawyer. You can submit a petition to separate and file the documents yourself. However, you should hire an attorney to ensure your paperwork is correct and covers everything pertinent to your separation.
