Therapist Note: Legal Issues of Trial Separations

For mental health professionals, temporary separations can be a useful therapeutic tool for stressed marriages.  But, many marriage counselors are unaware of the legal ramifications that even seemingly temporary separations can produce.  Nonetheless, there are potential legal issues involved, and mental health professionals would do well to have a very basic understanding so that they can advise clients to seek legal advice if appropriate.  This post describes the most common complications.   1.Separation period for divorce   In North Carolina, a couple must live separately and apart for at least one year before they can file for divorce.  That one-year period may start running when a couple initially separates, or it may not; it depends on whether one spouse intended the separation to be permanent. If it is truly a trial period, and neither party intends for the separation to be permanent, then it does not start the one-year period. This can trick clients who think they’ve been separated the whole time.  For example, if they had a six-month trial separation, and then decided that they would stay separated, then the separation period probably only started after the first six months.  They will likely be confused as to why the first six months did not count. Further, moving in and out and in and out creates some sticky questions about when and whether the couple’s one-year separation started.  If a couple has separations and reunifications, then it can be hard to pin down the exact date when a permanent separation began.  I see this when a spouse moves out for months, and then decides that they cannot afford living in two separate homes.   The spouse then moves back in, but sleeps in a different room and the relationship does not resume other than living together.  The question of when the separation began becomes very murky at that point.   2.     Valuation date for assets and debts   The date of separation is the most common date upon which assets and debts are valued by lawyers and courts.  As balances frequently change, a date has to be chosen to freeze values for division purposes.  That is typically the date of separation. Because account balances and asset values can fluctuate greatly over the course of even a day or week, the date of separation can become a huge factor in determining the value of assets and debts.  For instance, when the real estate market crashed, property values took a nosedive.  Six months made a big difference in the value of homes.  Now that the market is recovering, values could be higher after six months. Unclear separation dates can lead to questions of significant value.   3.     Date of classification   Whether and how property is divided in a divorce can be determined by when it is received.  As an extreme example, a winning lottery ticket purchased the day before separation may be treated differently than one purchased the day after separation.  And this issue can make big differences in how assets and debts are divided.    4.     Establishing a new residence   Under North Carolina law, once one spouse moves out of the marital home and establishes a new residence, they can be barred from entering the marital home again without permission. So, the party who moves out may unwittingly be giving up their right to get back into the house in the future.  Almost no one knows this when they agree to a trial separation. This can be a big problem down the road if cooperation falters and one party has no access to kids, possessions, etc…without involving courts.   Temporary separations can have significant legal implications for a couple. Those discussed are some of the most common issues.  But, it is impossible to predict in advance exactly what issues may arise for any particular couple. For a mental health professional, the important thing to know is that trial separations can have legal impacts that are not apparent to anyone involved. If a trial separation is a good alternative therapeutically, consider having the couple consult attorneys to help avoid the unintended consequences.

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