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When a couple is having marital problems, they often decide to try a trial separation. A trial separation can be official, meaning the couple files for a legal separation, or unofficial. Not all jurisdictions recognize legal separations. In jurisdictions that do recognize legal separations, the rules and procedures will vary.
If a married couple feels as though the marriage is not working, but is not ready to file for divorce, a trial separation may be the answer. Within the United States, many states offer couples the option to file for a legal separation in lieu of filing for divorce. Individual state statutes will determine whether or not a legal separation is an option.
If it is allowed in the state where the couple resides, a petition for legal separation must be filed in order to initiate the legal trial separation. Under the laws of most states, all of the issues that may be settled in a divorce may also be addressed in a legal separation. For example, possession of the marital residence, custody of minor children, and child support may all be decided and incorporated into a legal separation order. The main difference between a legal separation and an actual divorce is that, at the end of a legal separation proceeding, the parties are still legally married, meaning neither may remarry.
Some couples choose a legal separation in lieu of an actual divorce due to religious or moral opposition to the concept of divorce. Others file for a legal separation instead of a divorce because their spouse is able to maintain benefits, such as health insurance, under the terms of a legal separation that he or she would lose if divorced. Still others use a legal separation as a trial separation to determine whether the marriage is truly beyond saving.
For couples who do not wish to make a trial separation a legal separation, the couple may simply decide to physically separate as a way to determine whether a divorce is appropriate or not. A non-legal separation does not require any formal action on the part of the parties. The parties should be aware, however, that, under the law, the couple is still considered married, which may mean that each party retains the same rights to joint bank accounts, real property, and custody of the children. In order for a trial separation to work without using the legal system, the couple must be in agreement as to important issues, such as possession of the marital residence and child custody, as there may be no legal recourse if there is a dispute.
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