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It merits saying up front that separation, physical or legal, does not always lead to divorce. Sometimes separation can be a time of forgiveness and renewed commitment. Many times, couples will separate in hopes of saving a marriage. Sometimes, this can work. After all, just getting distance from a painful, antagonistic situation can provide you with enough perspective to come back together weeks or months later and sort things out.
One couple we know did just that. The man, a newspaper reporter, left his wife in Boston and went on assignment in Russia for a year. Their marriage had been on the rocks, but during the year apart, the two developed an email correspondence that brought them new intimacy and understanding. When they came back together after 12 months apart, they were ready to really commit to the relationship and even decided to start a family.
In other marriages, separation—as opposed to divorce —becomes a permanent way of life. We know of a couple who stayed legally separate but married for some 25 years. (Indeed, they exist in that state to this day.) The woman, happily living in a townhouse in Miami, plays tennis during the day and spends evenings with her lover, another woman. The man, who enjoys the city life in a Manhattan penthouse, runs a successful business and has pursued a series of monogamous relationships that fell apart, one by one, when he refused to commit to marriage. He had the perfect excuse. He was not yet divorced from his estranged wife. For this couple, divorce holds nothing positive. It would erode their joint fortune and diminish the money available to their children (they had two). In the man's case, getting a divorce would only make him available for remarriage, an idea he hardly relishes.
This estranged couple had their relationship formalized in a Separation and Property Settlement Agreement drafted by their attorneys. For them, it was the best route to new and separate lives.
Preamble to Divorce
As the name implies, separation can be the first step along the journey to separate lives. Not quite permanent or irrevocable, separation enables the two individuals to get a taste of what it would be like to exist apart—to manage separate households, separate finances, and separate selves.
If you enter separation believing it is just what you need to heal your marriage, you may be kidding yourself. All too often couples who separate just to “get a little distance” find they like the distance just fine. The best way to work out marital problems is usually under one roof.
Most of the time, separation is a preamble to divorce—even if that was not the original intent. A Dallas couple we know opted for a long-distance relationship as a means of gaining perspective. The decision to separate was facilitated when the woman was offered a job in Des Moines. Unfortunately, her husband began feeling so resentful when she really left that, ultimately, he could not accept her back into his life. He felt this way despite the fact that he was the one who had encouraged her to leave in the first place.
Another example involves a woman who married the first boyfriend she ever had right after college. As the marriage went on, he became increasingly critical and angry. (Psychological abuse is the term that comes to mind.) Yet because she'd never really been alone, she could not imagine life without him. Finally, through therapy, she was able to take what she thought would be a short hiatus from the marriage. She never imagined that during this break she would experience a return of self-esteem, enthusiasm, and even joy. This “brief” separation was just what she needed to realize she could go it alone over the long haul.
As a step before divorce, physical separation has emotional and legal implications that you need to understand. Decisions made during separation often become stamped in stone, and anyone separating without the appropriate strategizing and protections can suffer unpleasant repercussions for years. Indeed, the legal arrangements made for separation often cannot be renegotiated for the divorce; those who decide to let things go, believing they will have another chance at a fairer deal later, are sorely disappointed most of the time.
The emotional tenor of your break-up and, by extension, your separation can impact the legal outcome of your divorce. Separation is such a naturally turbulent and overwhelming period that it lends itself to rash decisions driven by emotions like guilt and anger. In a cooler moment, you may have made a more strategic deal, but you will not generally have the luxury of negotiating twice. If you are separating, you should attend to the fine print of your future life now.
There are couples who treat separation casually and live apart without any formal legal agreement. If you and your spouse are quite certain that your separation is temporary, and that you will be using the time to reconcile, a casual attitude may work well. You can date your spouse, even have sex with your spouse—because as far as you are concerned, divorce is not in the cards.
But please be careful. If you have filed for a fault divorce, you may lose grounds for divorce in your state if you date or have sexual relations with your spouse during a period of separation. If separation is likely to be the first step in your journey to single status, we suggest you enter it seriously and formally—with a signed agreement and full awareness of the potential errors, many of them impossible to reverse later on.