Many people in a miserable marriage see only two options: stay stuck in the marriage or get divorced.
Most people also do not understand that divorce is not the only legal option. There are other legal solutions that provide safety and protection while spouses work out the problems in their marriage.
An attorney can help someone navigate these options. This attorney should ask their client what they need to stay in the marriage. Once these needs are clarified, the attorney can choose the right legal vehicle to meet their client’s needs.
These legal vehicles include reconciliation agreements, separation agreements and separation orders. These agreements or orders are enforceable in court. If the parties honor the terms of the agreement, they may save the marriage. And if one party doesn’t honor it, then the other spouse is protected by the enforceable provisions or remedies that are provided in the agreement or order.
Reconciliation agreements
The most conciliatory approach is a reconciliation agreement. This agreement explicitly states the intent of the parties to rebuild their marriage and may include something akin to a mission statement.
While a reconciliation agreement is often aspirational, the agreement can also include concrete requirements from both parties such as attending individual therapy, participating in marriage counseling or completing an intensive outpatient program. These requirements will also outline how often the parties will participate in these activities.
Both parties have a say about what they need from the other spouse, which gives each party a buy-in to the agreement. Medical and therapeutic professionals should be involved to determine the kind and intensity of treatment and support needed.
The agreement is then signed by both parties. The agreement provides a clear outline of what each party has agreed to do. It will also emphasize the importance of honoring the agreement to preserve the marriage.
Separation agreements
When a person feels they cannot live with their spouse but is not ready for a divorce, a separation agreement can be a helpful tool. This agreement gives the parties space and time to work on their marriage while protecting both parties’ legal rights.
Like a reconciliation agreement, a separation agreement can include the spouses’ commitments to getting professional help. It also can include:
- Who stays in the house.
- The living arrangements of the other spouse and how the rent will be paid.
- How the mortgage, rent and utilities of the marital home will be paid and who will have responsibility to pay them.
- Where the kids are going to live and how many overnights they will be spending at each parent’s place.
- Restrictions on spending money beyond ordinary living expenses.
- Restriction on selling assets such as a car or a rental property.
A separation agreement does not always require that one spouse move out. Sometimes spouses can agree to living in separate bedrooms or separate levels in the home. This arrangement can provide more stability for the children and lower financial stress while the spouses work on their marriage. But this only works if both parents feel physically and emotionally safe staying in the home.
The parties should seek legal counsel before entering into a separation agreement. If the parties later divorce, both the agreement and the parties’ actions under the agreement carry legal weight that can influence the divorce proceedings.
Court-ordered separation
When a spouse feels they need more than a private agreement, they can petition the court for a temporary separation order. A temporary separation order is issued by the judge and is more immediately enforceable than a separation agreement. While it does not dissolve the marriage, the order can establish living arrangements, child custody, child support and spousal support (alimony) while the spouses decide whether they can reconcile.
This order lasts for one year unless the parties move to dismiss it or a divorce action is filed. If one of the spouses does file for divorce, the terms of the separation order will continue until further determination is made by the court in the divorce action.
The value of clear boundaries
The advantage of any of these agreements is clarity reduced to writing. Sometimes parties forget what they agreed to do. Sometimes they deny what they agreed to do. But when third parties help draft the agreement and keep the contract provisions clear, either party can refer to the agreement when they later face a disagreement.
The law cannot force anyone to change. The law cannot rebuild trust or heal a relationship. But it can create the framework needed to rebuild and heal. Each spouse can choose whether to honor that framework. They will also understand what will happen if they don’t.
A spouse who wants to save the marriage has the opportunity to show their commitment through action. A spouse who chooses not to abide by the agreement faces legal consequences. As Brannon Patrick, a mental health professional, once said, “Good boundaries end bad relationships.”
Divorce may still be the only option for some couples. However, reconciliation agreements, separation agreements and separation orders can provide the structure needed to heal a marriage or the clarity needed to let go.
This article is provided for informational purposes only and does not constitute legal advice. Because every situation is unique, readers should consult a qualified attorney for advice regarding their specific circumstances.