Making the Decision: Separation

Deciding whether or not to separate, physically or legally, is always hard and does not always lead to divorce. Check out this article on separation to find out if you should divorce after separating from your spouse.

By Pamela Weintraub and Terry Hillman
Updated: March 20, 2017
Legal Separation/Divorce Process

Beginning of the End, or a New Beginning?

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 e-mail 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.

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 way 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.

Remember that 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.

Red Alert: 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 to work out marital problems is usually under one roof.

A Separate Peace

As with the decision to divorce itself, separation is often experienced differently by the individual who initiates the separation and the one "informed" that an impasse is at hand. Whether you are the dumper or dumpee, remember that your future will be impacted by your decisions during this critical time.

It only makes sense that the person who initiated the divorce comes to embrace the single life of separation sooner; that individual has been living with the decision for quite a while. Given this fact, the individual who has initiated the divorce should see the separation as a means of providing his or her partner with time. Even though you might be saying, "Okay, we're going to end the relationship. Let's get working on the terms of the separation. Let's see if we can mediate this," your partner is still reeling from the pain. At first, he or she will not be nearly as ready to negotiate the terms of the agreement -- certainly not in any sense that could be favorable to you.

If you have been rejected by your spouse, on the other hand, use the separation period to help yourself heal. As you go through the stages of grief, you will come to see yourself as a solo act. You might need to utilize this time to brush up on job skills, gain self-confidence, or simply come to know yourself as an individual who stands alone. You'll know you have arrived when you too can say, "Okay, I can see our incompatibility. This needs to end. At this point, I would also choose to end this relationship and go on in a new direction."

Remember, the process is painful. If you're like most people, you won't pass quickly through the emotional gauntlet of separation. Typically, psychologists say, the first year following separation is most difficult. During this period, you're most prey to mood swings, sadness, feelings of loss, and anger. If you remain on this emotional roller coaster for more than a year, however, you are not progressing fast enough. It is time to seek counseling or some other form of psychological help.

Published research bears this timetable out. According to a study from psychologist Joan Kelly, Ph.D., of the Center for Marital Transition near San Francisco, couples in conflict report that conflict drastically reduces after 12 months. Other research indicates that conflict and anger tend to diffuse after a period of separation, and if couples have not continued to interact, at the end of two years, most of the conflict will be gone.

Surviving Forced Togetherness

Sometimes, despite the positive impact of physical separation, couples stay together in the same physical space for legal and financial reasons until the day of the divorce decree. There are a number of reasons why this is often legally advisable. If you seek full or joint custody of the children -- or if you just want a generous visitation schedule -- staying in the house will help your cause. Leaving, in fact, often puts you at a tremendous disadvantage in any legal proceeding. Although the opinions expressed here, as in the rest of the book, do not constitute legal advice, the decision to stay or leave is so important that we strongly advise you to consult your attorney before you do anything.

Your leaving might make it easier for your spouse to delay the signing of divorce papers, putting you at a strategic disadvantage. Indeed, many times, a spouse will just want you out of the house but will be reluctant to move forward with divorce because of economic circumstances. Once you leave, your spouse will have little incentive to move quickly. The longer your spouse delays the divorce, the more frustrated you will become, and the more likely you will be to sign an agreement less favorable to you. On the other hand, if you stay in the home, your spouse will be the frustrated one; you will have the upper hand during negotiations.

Finally, for those who are particularly money-conscious -- and who isn't these days -- the longer you and your spouse share the same home, the more money you will save.

If you've decided to stay in the house until the divorce is over, turn one section into your "camp." If you move out of the bedroom, do not -- we repeat, do not -- leave your clothes, jewelry, and other possessions in the dresser, especially if you plan to use them on a daily or weekly basis. Instead, choose a spot -- the den, the guest room, or even the basement -- and move all your clothes and possessions there so that you and your spouse have as little negative interaction as possible. (Workday mornings are pretty negative even in the happiest marriages!)

If you have been advised by your attorney to stay in the house, try to do so as amicably as humanly possible. One psychologist we have interviewed even suggests Yogic breathing exercises as a means of dealing with the stress this sort of situation brings. Remember, your code word is equanimity. Of course it will be difficult, but adding any more hatred or animosity to the marital pot is toxic.

Red Alert: If you think you are going to divorce eventually and you might want custody of your children, some judges might hold your move from your children's house against you. Be careful. Don't let a short-term goal interfere with what you really want.


If life in the house is intolerable and you know custody is not in the cards for you, a move might be wise. It could take one to three years for your divorce to be final, and neither you nor your spouse could cope with one to three more years of tension. More important, it's not good for the children. Again, check with a lawyer before making a decision.

Before you move, discuss the division of personal property with your spouse. You might not be able to take anything with you yet (one woman we know stayed with 10 friends during the 12 weeks it took her to locate an affordable apartment), but at least you'll both understand that by moving out, you're not giving up your rights to property. Your lawyer might want this in writing. If you don't have a lawyer, write down that you are not giving up any rights by moving out and ask your spouse to sign what you've written.

If life in the house is intolerable and you want custody of the children, talk to your lawyer about moving out with the children. Your lawyer might want to first obtain an order from a judge, giving you temporary custody of the children, thereby giving you the right to take the kids with you when you leave.

Silver Linings

During your first year of separation, you might find comfort and camaraderie in one of the myriad support groups for the divorced. As you go about choosing a group, however, do be cautious. Some divorce groups are wonderfully supportive and nurture healing. Others foster conflict and fan the flames of anger. It will not help you to associate with a group that feeds the anger. What you really need -- and what should be available in most areas -- is a support team that facilitates positive, constructive solutions for your life so you can get beyond your relationship and divorce and move on.

Pamela Weintraub and Terry Hillman are co-founders of Divorce Central, an online service. Ms. Weintraub is the author of more than a dozen books and was previously editor-in-chief of OMNI Internet. Ms. Hillman owns a business that produces multimedia educational programs for professionals. This article has been excerpted from their book The Complete Idiot's Guide to Surviving Divorce.


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November 14, 2007
Categories:  Legal Issues

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