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Beware: Trial Separations are not What They Seem

Our view of trial separations is based solely upon our observations and client feedback. We have yet to find another divorce lawyer that doesn’t agree with us when we say that Trial separations don’t work.

Trial Separations – A step to save the marriage OR the first step of ending the marriage?

It takes a lot of pain and courage to change life as you know it, and it takes even more courage to tell your spouse that you are about to take steps to end the marriage. Most clients report that having such a conversation is probably one of the hardest things that they have ever had to do. So, to alleviate discomfort in making this announcement to the unsuspecting spouse, and to lessen the devastation that the other spouse is about to experience, most deliverers of this message take the easy way out and don’t talk about divorce.

They convey general confusion and unhappiness with the marriage and suggest trial separation as a means of “giving them some space to sort things out”. It is understandable why the deliverer uses this approach – it is an easier message for him/her to deliver. It also gives both parties the incidental benefit of having a more “acceptable” story to tell family, friends, co-workers, etc. (i.e. “We’ve hit a couple of bumps in the road and thought we’d take a little break”).

Trial separation – is it a method of letting the other spouse down more gently OR just a good way to get a reluctant spouse to move out?

Making the decision to divorce is as much a process as the actual divorce itself. Our definition of a process in this regard is something that starts out as a 0 and moves along the mind’s conveyor belt until it reaches a 10 (which is the finished product stage). We believe that when the “trial separation” announcement is made, the deliverer’s conveyor belt is already at a 9 or 10 and the other spouse’s conveyor belt has not even been turned on.

Because the “trial separation” announcement is delivered in a caring and sensitive fashion, the spouse receiving the news is filled with hope and is justifiably led to believe that the deliverer’s conveyor belt is at a very low number. The “unsuspecting” spouse has no way of knowing that divorce is almost a foregone conclusion in the mind of the deliverer.

Experts tell us that the spouse who is seeking the trial separation is usually 6 to 24 months ahead of the unsuspecting spouse in “crossing all of the bridges” necessary to reach the decision to divorce. This time span represents the amount of time that it took for the deliverer to be able to identify and accept divorce as a reality and to grieve the loss of the marriage. The unsuspecting spouse will typically understand that divorce is a possibility, but will not see it as a sure thing.

Logic and/or fair play would dictate that the unsuspecting spouse should also get an appropriate amount of time in order to “come to grips” with the fact that the marriage may really be ending. However, the unsuspecting spouse is rarely afforded all the time that he/she needs. The deliverer spouse will generally project and naively expect that the actual divorce process will begin more in accordance with his/her time schedule than with the time schedule of the unsuspecting spouse. Neither party has any real awareness of the other’s timetable. This fact leads to unnecessary hostility because the deliverer, on the one hand, will typically become impatient that things are taking so long. The unsuspecting spouse, on the other hand, will not be ready to agree to the divorce because he/she as been lulled into believing that the deliverer spouse may return to the marriage.

As more time passes, the deliverer will resent still being tied to the marriage and will cause the unsuspecting spouse’s conveyor belt to reach a setting that is higher than the unsuspecting spouse is able to tolerate.

Now we have a situation where the deliverer is resentful of the delay and the unsuspecting spouse is resentful about being pushed into something he/she doesn’t want. At or about the same time, the unsuspecting spouse starts to piece together that the trial separation wasn’t really what it is made out to be.

This is why Trial separations don’t work. They are based upon a false premise. They are not about a trial at all – they are the first step of divorce in disguise.

The unsuspecting spouse’s negative feelings are generally accompanied by non-productive behavior such as making nasty telephone calls to the deliverer spouse (and that spouse’s family) following the deliverer spouse, making harassing phone calls at work etc.

When the trial separation first started, the deliverer spouse had feelings of sadness, guilt and remorse. The unsuspecting spouse’s retaliatory behavior usually causes those feelings to be replaced by negative and non-productive feelings which will typically produce a “no more Mr./Mrs. nice guy” attitude. As a result, the parties are no longer able to communicate or resolve their issues in a productive manner. They take combative stances and any negotiation towards an amicable settlement/resolution become limited at best.

Those that ask for a trial separation take the line of least resistance. Although it requires the deliverer to exercise some courage, it is generally in everyone’s best interest if the deliverer can find it within himself/herself to “bite the bullet” and be as up-front as possible at the time of the initial announcement.

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Richard and Kari are staunch advocates of the non-court approach to divorce, and are also active and seasoned litigators with over 60 years of combined trial experience in the Illinois divorce courts of Cook, DuPage, and Will counties.

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