Divorce is a big step. Many couples will separate with the explicit option that they may, in fact, get back together. A non-permanent separation is called a trial separation. Some therapists will recommend trial separation in order to allow each member of the marriage think clearly about the future of the relationship.
Trial separations, by their nature, may end in divorce.
“Defendant suggested a trial separation, but her husband stated that if they were going to be separated, he would prefer a divorce.” Harris v. Harris, 360 NE 2d 113 – Ill: Appellate Court, 2nd Dist. 1977
What risks are there in engaging in a trial separation before a divorce?
All Assets And Debts Acquired By Either Party Are Marital Until The Divorce Is Final In Illinois.
Illinois divorce courts can only divide property that is classified as “marital”. Marital property is any property (or debt) which was acquired during the entire marriage.
“‘[M]arital property’ means all property, including debts and other obligations, acquired by either spouse subsequent to the marriage” 750 ILCS 5/503(a)
“For purposes of distribution of property, all property acquired by either spouse after the marriage and before a judgment of dissolution of marriage or declaration of invalidity of marriage is presumed marital property.” 750 ILCS 5/503(b)
Without filing a petition for dissolution of marriage or a petition for legal separation, a trial separation has no impact on division of assets in an Illinois divorce.
“To hold that the parties did not accrue marital property after the date of [mere] physical separation would be to recognize “common law divorce,” and the law and public policy do not support such a result.” In re Marriage of Morris, 640 NE 2d 344 – Ill: Appellate Court, 2nd Dist. 1994
The assets you accumulate during a trial separation will be divided if you eventually get divorced. Likewise, the debts your spouse accumulates during the trial separation will be deemed marital assets and you will be responsible for a portion of those debts.
Trial Separation May Constitute An Agreement To Waive Maintenance
Every Illinois divorce court must consider maintenance (formerly known as alimony)
“In a proceeding for dissolution of marriage, legal separation, declaration of invalidity of marriage, or dissolution of a civil union, a proceeding for maintenance following a legal separation…the court may grant a maintenance award for either spouse in amounts and for periods of time as the court deems just, without regard to marital misconduct, and the maintenance may be paid from the income or property of the other spouse.” 750 ILCS 5/504(a)
When determining to award maintenance, an Illinois divorce court considers several factors that would be impacted by the existence of a trial separation.
“The court shall first make a finding as to whether a maintenance award is appropriate, after consideration of all relevant factors, including:
…(2) the needs of each party;…. (7) the standard of living established during the marriage;… (13) any valid agreement of the parties; and(14) any other factor that the court expressly finds to be just and equitable.” 750 ILCS 5/504(a)
A trial separation that also involves keeping your finances separate may serve as an agreement to waive maintenance. Even if the trial separation is not deemed an agreement, each party established a new standard of living during the trial separation (which is “during the marriage”) and met their own needs during the trial separation.
A trial separation may extend the duration of time when a party must pay maintenance.
“The duration of a [maintenance] award ….(1) shall be calculated by multiplying the length of the marriage at the time the action was commenced by whichever of the following factors applies: less than 5 years (.20); 5 years or more but less than 6 years (.24); 6 years or more but less than 7 years (.28); 7 years or more but less than 8 years (.32); 8 years or more but less than 9 years (.36); 9 years or more but less than 10 years (.40); 10 years or more but less than 11 years (.44); 11 years or more but less than 12 years (.48); 12 years or more but less than 13 years (.52); 13 years or more but less than 14 years (.56); 14 years or more but less than 15 years (.60); 15 years or more but less than 16 years (.64); 16 years or more but less than 17 years (.68); 17 years or more but less than 18 years (.72); 18 years or more but less than 19 years (.76); 19 years or more but less than 20 years (.80). For a marriage of 20 or more years, the court, in its discretion, shall order maintenance for a period equal to the length of the marriage or for an indefinite term.” 750 ILCS 5/504(b-1)(1)(B) (emphasis mine)
The duration of maintenance is based on when the divorce was filed. Trial separations, by their very nature, delay the date of a divorce’s filing.
A Trial Separation May Invalidate A Dissipation Claim In An Illinois Divorce
When dividing up marital assets, Illinois courts consider whether either party has dissipated marital assets.
An Illinois divorce court “shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors, including:
…
the dissipation by each party of the marital property” 750 ILCS 5/503(d)(2)
“Dissipation occurs when one spouse uses marital property for his or her sole benefit while the marriage is undergoing an irreconcilable breakdown.” In re Marriage of Stuhr, 2016 IL App (1st) 152370 (citations omitted)
If the parties are separated, every expense is for “his or her sole benefit.”
However, if the separation is characterized as a trial separation, then the breakdown is not irreconcilable. The whole point of the trial separation is to see if, in fact, the parties can reconcile.
Theoretically, this makes any expense (even money spent dating other people) not subject to a dissipation claim if the expense occurs during a trial separation.
The counterargument is the trial separation is the beginning of when the marriage became irreconcilably broken and, therefore, a dissipation claim based on an expense during the trial separation can survive.
“[D]issipation is to be calculated from the time the parties’ marriage begins to undergo an irreconcilable breakdown, not from a date after which it is irreconcilably broken.” In Re Marriage of Holthaus, 387 Ill. App. 3d at 375
Trial Separation And Parenting Time
A trial separation may not be the greatest idea if the parties have children. Mom or dad disappearing and possibly coming back may be incredibly confusing to children and cause great anxiety now and in the future.
However, if parents do engage in a trial separation, their behavior during that trial separation will impact parenting time in a possible subsequent divorce.
“In determining the child’s best interests for purposes of allocating parenting time, the court shall consider all relevant factors, including, without limitation, the following:
…(3) the amount of time each parent spent performing caretaking functions with respect to the child in the 24 months preceding the filing of any petition for allocation of parental responsibilities or, if the child is under 2 years of age, since the child’s birth;(4) any prior agreement or course of conduct between the parents relating to caretaking functions with respect to the child;… and(17) any other factor that the court expressly finds to be relevant.” 750 ILCS 5/602.7(b)
The parenting schedule that was casually agreed to during the trial separation will likely become the permanent parenting schedule based on whether it was successful or not.
Trial separations are an experiment. Maybe your trial separation will be a healthy experiment that can give you emotional closure about your relationship’s future. Maybe your trial separation will massively impact your eventual divorce. Either way, you need to know the impact of your trial separation should you and/or your spouse divorce.
Contact my Chicago, Illinois family law firm today to schedule a free consultation with an experienced Illinois divorce attorney to learn more about what a divorce might look like and how you can prepare today.