Many couples intending to legally separate make the false and potentially costly assumption that “once you are physically separated you are legally separated.” The truth is, you are legally separated only after you receive a signed decree of legal separation from a court. Physical separation (trial separation) alone is not legal separation.
Can my husband and I do a trial separation without going through the court?
Most people use the term, trial separation, to mean getting physically—especially sexually—away from each other. In most cases, one spouse moves out. This can be done without going through the court.
But remember that unless you agree otherwise, the legal consequences of your marriage continue after you decide to physically separate. The law presumes that any property or debts either of you accumulates during a trial separation are marital – joint.
Consider what happens if Joe and Sally undergo a long trial separation. Sally continues to contribute to her retirement account while Joe incurs substantial credit card debt. If Joe and Sally decide to divorce, her retirement savings will be considered marital property and his credit card debt, marital debt. This will be true even if only one name appears on the account.
It is often a very good idea to write out in detail the agreements you make with each other about your physical (trial) separation. It is a time to try out your ideas about parenting, support, and meeting marital obligations. You can use the form JDF1115, Separation Agreement, to work out the details and file the form with the Court if you decide to make it legal.
Can we live in the same house and still be legally separated?
Yes, as long as you have a court signed decree. One person might move to the finished basement, another bedroom, or mother-in-law apartment. You may want to work out a schedule of different kitchen and laundry room times to create a feeling of separateness and avoid difficult surprises.
For more information, check out the “Friendly Divorce Guidebook for Colorado” by M. Arden
Hauer, MA, JD www.friendlydivorce.com