He Said/She Said: Should We Separate? Tips From a Marriage Counselor and Divorce Lawyer

When it comes to test-driving a separation everyone has an opinion, but no one disagrees more than your marriage counselor and your divorce attorney.
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When it comes to test-driving a separation everyone has an opinion, but no one disagrees more than your marriage counselor and your divorce attorney. A trial separation is one of the most challenging decisions a couple can make when facing hard relationship problems. Couples often struggle with questions like "What will we tell the kids?," "Is it healthy to try and stay in the same house?" and "What are the legal consequences if I move?" With so many questions to address, Denver marriage counselor Aaron Anderson advises couples that it's healthier to separate during the divorce but New York divorce attorney Morghan Richardson advises against a move-out. Here's why in their latest he said/she said:


John looked at me like I was crazy. "You want me to go back home? But she's asking for a divorce!" But that's exactly why he needed to go home, because separation triggers a host of legal consequences that might hurt you in your divorce case. Here are my top 4 reasons why you should "stay together" during the divorce:

1.Custody Issues. During your marriage, you both have equal parenting rights. This means that Mom and Dad have an equal claim to custody. One client, I'll call him Mark, wanted true equal custody. His wife Deb had asked for "some space" and he complied by finding a room to sublet. Then he was hit with divorce papers. Mark's move had given Deb residential custody of the kids -- they lived with Mom, not in Dad's sublet. Tip: If there is so much strife that living together during the divorce isn't possible, the parties should try to strike a short temporary agreement about custody before a move out takes place.

2.Support Issues. As long as the parties live under the same roof, they are still viewed as contributing to the support of the other and their children. Once someone moves out, there may be an obligation to pay spousal support and child support. Support can also include the obligation to continue paying the mortgage and bills that you paid when you lived together. Keeping two separate homes is always more expensive than having one household. While it might be uncomfortable, staying together under one roof will cut costs during the divorce.

3.Housing. Marylin was a gorgeous flight attendant with a hot temper. When she found out about her husband's affair, she packed a bag and left that night. Unhappy with her new roommates and cramped space, she wanted back in their cooperative apartment, after all, "he's the cheater, he should leave," she told me. Too late. Her husband asked the Court for "exclusive use and occupancy" of the apartment, to keep Marylin out and essentially prevent the fighting that would take place if she moved back. While Marylin still had rights to the value of the apartment as a marital asset, she lost the right to move back in.

4.Abandonment. Most states have "no fault" divorce and grounds (reasons for the divorce) are not necessary. However, moving out for a year or more may trigger a ground called "abandonment." This just gives spouses one more reason for the divorce.

Sadly, this might lead to additional tension: the lawyers who represent Dad are telling him to "stay home" and the lawyers who represent Mom are telling her to pressure Dad to "get out."


When divorce is imminent, most couples don't wait for the court date before they begin moving on with their lives. Before the divorce papers are even drafted some couples are already planning separate holidays, dividing belongings and even begin dating!

As a marriage counselor, I often counsel individuals and couples through divorce. And once a couple decides that divorce is imminent I will advise them to go ahead and separate. Here's why:

1)Separation can help everyone transition better. Divorce is a difficult thing for everyone involved. Separating beforehand can help you sort out many of the details of the divorce before the big day comes. Things like what your actual expenses are going to be, who is going to pick up the kids from school, what kind of clothes the children need at each parents, house, etc. can all be sorted out beforehand so it makes the big day a lot easier.

2)Separation is a temporary relief. By the time most couples divorce there have been problems in their marriage for years. And the problems that have been going on are creating stress, tension and all sorts of other problems. So separating can be a reprieve from that daily stress. Instead of coming home to a tense environment every day (which will only get tenser as the divorce goes forward) you're able to take your mind off of it and focus on other, less stressful things.

3)Separation helps you see yourself differently. After you've been married a while you find yourself doing a lot of the things your spouse likes to do. You watch the same shows they like, go to the same restaurants, even listen to the same music. But when you separate it gives you a great opportunity to explore yourself. You get to do more of what you like to do and discover new parts of you that you never knew existed.

Separation is no easy decision. There are legal and practical pros and cons regardless of which direction you go. Ultimately the best decision is the one that helps you sleep the best at night. And that's the best advice anyone -- including a marriage counselor and divorce lawyer -- can give you.

Have you struggled with the decision of whether to separate? Do you have questions you think we would each answer differently that might help others in making a divorce decision? Join the conversation in the comments.

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