The “Trial Separation”

By Scott R. Hardy

Managing Partner, Carolina Divorce Mediators

 

When couples elect to “trial separate”, they are usually doing so to determine if being apart or being together is where they need to be. Of course, these goals vary from couple to couple, but nonetheless, couples are testing the waters of separation/divorce for a variety of reasons. Maybe one person thinks separating/divorcing is the only option and the other is offering significant resistance. Maybe they are both on the fence and just need a break. But the implication of the “trial” is that neither is 100% sure of anything. No one seems to want to make an irrevocable decision (divorce), but in actuality, they want to make the right decision, whether it be to stay together or not.

In either case, no one, especially their therapist(s) and us as mediators want to stand in the way of reconciliation – nor do we want to encourage divorce. But we want to help them. And if we are to help them, we want to do so in the best way we can. Therapists want to help them reconcile. We want to help them handle a trial separation in a way that does not allow one party to take advantage of the other. This can happen when one party is not as much on the fence as the other. The one who wants to “heal the marriage” may allow him/herself to be treated a little more unfairly in order to keep the peace and keep the marriage. This is where we come in.

Why should couples mediate a “trial separation”?

A trial separation is really no different than a “real” separation. Separated is separated. Each party will have clear expectations of the other. But there are no obligations to meet those expectations. They have (usually) never lived apart. It is something they have not done. But they need to agree on the expectations of living apart (responsibilities…… not the relational expectations) prior to doing so. The obligations set forth in a mediation for a trial separation are typically, but not always, the same as a standard separation. At a bare minimum (when children are present), discussions centering around time sharing of the kids, medical care, support, and relocation are important factors that establish a person’s expectations of the other. Once a couple lives up to the terms of their agreement, they can shift focus away from what they “think will happen” and focus more on “what is happening”. Meaning they can set aside the “anguish of the unknown settlement” and see what type of person each is becoming through therapy. Without an agreement, some might stick it out because of the fear of not being able to be financially able. But if the support payments provided through an agreement show this person that financial survival is a reality, then a reconciliation happens for the right reason – because the relationship was worth it. And not because of financial fear.

Another example. The couple is going to trial separate but they don’t want to change everything. They want to keep the house. They want to continue to share bank accounts. Fine. So, let’s say dad moves out to a small apartment and mom stays in the marital home with dad paying all the bills. After 10 months of counseling, mom has had enough and just can’t reconcile. She gets an attorney. That attorney argues that dad has “established a precedent of being able to pay all of the expenses to keep mom in the marital home”. Well, yes, but at the expense of having nothing for himself or for the children when he spends time with them. The court awards her these wishes.

Most couples who come to mediation do so for the right reason. They want to be fair and equitable, they don’t want attorneys, and they want to be civil. They have a “clear head” so to speak. So, if a “trial separation” couple mediates, they do so with this clear head. They would set expectations in each other and reach agreement. Now they can focus on the marriage to see if a reconciliation is an option. One of three things typically happens:

1. They pull through and reconcile. The agreement goes away very easily.
2. They experience more challenges and are unable to reconcile. But there is NO agreement. Now no one is obligated to do anything. They both get attorneys, have emergency support hearings, and it gets very ugly, very quickly.
3. They experience more challenges and are unable to reconcile. But the agreement is already in place. They did it while having the clear head. No new “hard feelings” can change it. The best choice for couples who don’t make it.

An agreement for a couple employing a trial separation:

1. Is a way to insure fairness is set as a primary foundation in the event the couple makes the separation permanent.
2. Is a way to insure one parent does not relocate (with the children) away from the other
3. Is a way to insure financial stability for both parties. Not just one.
4. Is a way to “set aside” concerns of a future settlement so the focus can be on reconciliation and not divorce. If they don’t make it, the agreement is already there. If they do make it, they did it for the right reasons. It gives them piece of mind.
5. Is a way to not establish a precedent that could adversely affect a party later.

An agreement is NOT:

1. a way to facilitate a divorce for a couple trying to find their way to reconciliation.
2. an implication that a divorce is imminent. Divorces do not happen automatically. A divorce filing is a separate, independent action that must be initiated by one of the parties. So, if they are still trying to work things out, they have time.
3. “the first step” in getting a divorce. It may be their first step in reconciliation.
4. a permanent solution. An agreement can establish obligations until one decides to file for divorce. Once that contingency happens, then different provisions become effective. (This is perfect for dad moving out of the marital home during the trial. If it becomes permanent, then other provisions take place).