How Should I Protect Myself If My Spouse Suggests A Trial Separation?

My spouse suggested we have a trial separation and I’m wondering if there’s anything I need to do to protect myself in case we do eventually get a divorce?

By John Gilligan
March 10, 2015

I have seen some of the worst situations occur as a result of a trial separation. If you have children and move out of the home based upon what you believe to be a trial separation, the spouse in the home can file a petition to dissolve your marriage and then automatically have primary physical custody since it would be virtually impossible for you to move back into the house since you are living somewhere else. In effect, this could cause you to lose custody.

During a trial separation, you are still married. Therefore, one of the spouses could run up all the bills and leave you with half since this would still be a debt incurred during the course of the marriage for which both parties are equally responsible.

During a trial separation, you could lease an apartment and be responsible for the rent and still be equally responsible for the mortgage on the family residence you left thereby creating an impossible financial situation for you especially if you live paycheck to paycheck. Since divorce cases sometimes take in excess of one year to fully adjudicate, this could leave you in an economic mess for quite some time.

There are many more scenarios. The best way to protect yourself from these types of events is to have a written agreement with your spouse during the “trial separation.”

The agreement should involve a detailed parenting plan setting forth the days and times when you see the children and when your spouse sees the children. An agreement on payment of support should be set forth. There should be a written agreement setting forth what debts each spouse will pay, including the rent, the mortgage, the credit cards and the like. There also should be an agreement that neither party will incur extraordinary expenses or incur out of the ordinary debt during the trial separation process and if they do, the incurring party would be responsible. In short, before the trial separation process, you need to hire an experienced, seasoned family law specialist.


John Gilligan is a founding partner at the family law firm offices of Brandmeyer Gilligan Dockstader & Davidson, LLP in Long Beach, CA. John has over 30 years of experience handling family law, probate litigation and estate planning matters. He can be reached directly at 562-431-2000 or thru email. View their firm online profile here.

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March 10, 2015

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