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Separation without End:  Married but Living Separately

September 1, 2010

 

Separation without End:

Married but Living Separately

 

On August 1, 2010, the New York Times coined a new term, “the undivorced.,” This term characterizes couples who have elected to remain, indefinitely separated rather than to secure a permanent, legal separation, otherwise known as divorce.

What the New York Times (http://www.nytimes.com/2010/08/01/fashion/01Undivorced.html) failed to tell us is that separation, as a living arrangement, has been around for hundreds of years.  Historically, separation offered a solution to those who felt divorce was religiously or morally unacceptable.  Whether they lived apart, in the same house, or had separate living arrangements, these couples were, for all intents and purposes, separate entities.  Today, as the New York Times does point out, the reasons to be “undivorced” are primarily financial in nature.  Marriage, even in legal name only, offers coverage under family health insurance, the ability to file joint tax returns and, of course, avoids dividing up the marital pot, and paying legal advisors to do so.

Some couples remain in extended separations because neither one has a compelling reason to divorce.  Typically, when divorce does surface, it is because one of the couple wants to remarry or his or her “new friend” refuses to go along with his/her partner still being married, be it for moral, religious, or just personal reasons.  “It feels wrong.  I’m dating a married man who says he really isn’t married.  What do I tell my children?  My mother?  My friends?” laments one partner of a long-time separated boyfriend.

Is this state of separation to be considered as a viable choice when a couple considers divorce?  Clearly, the recent recession has helped propel this living arrangement into prominence as an increased number of couples feel they cannot afford to divorce.  If separation saves money, when health plans do not cover a divorced spouse* or tax benefits are more favorable when filing jointly, maybe separation is an answer.  Then, too, if a couple does not want to divide up an estate or does not want to remarry, staying married provides other pluses.

Yet there are negatives also to be considered: 

            You remain liable for each other’s debts.

            Your decision-making is entwined.

            What if one wants to retire and tap retirement funds and the other wants to keep building the marital estate?

            What if one is a saver and one is a spender?

Perhaps the “undivorced” need a contractual arrangement.  Maybe they need to agree on how money is to be spent and saved.  Maybe they need a “real” separation agreement replete with terms for a possible divorce – a post-nuptial agreement.

At the Centre for Mediation & Dispute Resolution (CMDR), we suggest that individuals in long-term separations could benefit from the clarity and certainty that comes with a formalized arrangement, be it for finances only or for parenting and finances.  In a sense, planning would benefit any couple, but in particular, an “undivorced” couple since the tenuousness of their state suggests that divorce remains a viable option to at least one member of the “unpaired” pair.  If the notion of divorce is alive and well, even in one party’s head, a bit of careful forethought might benefit both parties in the undetermined and uncertain future.

 

*In Massachusetts, many plans do cover spouses after divorce.



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