How Does Separation Affect Property and Custody Rights?

There are four different types of separation that married couples may enter that include: a trial separation, living separately, permanent separation, and a legal separation.

Trial Separation

A trial separation is when spouses are living apart and deciding whether to continue with marriage or dissolve it through divorce. Any property and debts that are acquired during a trial separation are considered joint marital property. After one spouse decides to file for divorce and end the marriage, the property can be classified differently by the court.

Living Separately

At times, married couples may live apart without any intent to continue the marriage. Each state has its own laws on the separation of property in this type of case. In community property states, all debts and acquired property while living separately are considered community marital property. After one spouse intends to end the marriage, the debts and property acquisitions after that time are treated as separate property. Some states consider all property and debts as separate property if acquired during living separately, while others consider it all marital property and debt until a divorce complaints are filed with the court.

Permanent Separation

Most states classify all debts and property as the separate property of one spouse after a permanent separation. This is not a legal separation, in where all assets and debts are decided on to whom they belong to by a court, the same as in divorce proceedings. Debts acquired after a permanent separation but before a divorce that are necessary for the family are considered joint debts for the spouses. This includes mortgage payments, home maintenance, and any expenses for the care of children.

Separation and Custody

During a separation period of any type, both spouses share custody of the children and each has rights to see the child. At times one parent moves out and the other parent stays with the child in the family home. Either parent can file for child custody and child support in a separation case. The court decides which parent is the custodial and which is the non-custodial. The court may also make a visitation order. This also varies by state and you should seek legal advice in your state for all of the details pursuant to your case.