Soft Separations and the Future of Divorce

Will Smith generated significant controversy when he slapped Chris Rock at the Oscars in March 2022 for insulting his wife, Jada Pinkett Smith. However, Jada Smith has reopened old wounds recently by disclosing that she and Will Smith have been separated since 2016, six years before the infamous slap heard around the world. The Smiths were not living together in 2022, but actually had no plans to finalize a divorce.

There has been an uptick in “soft separations” like the Smiths, where the couple is living apart but legally still married with no intention of getting a divorce. Soft separations are beneficial for celebratory couples due to potential reputational damage, though couples also save money on legal costs, maintain certain tax benefits from being married on paper, and avoid potential religious disputes about divorce.

Are There Downsides to a Separation Instead of Divorce?

Couples that are separated are still legally married. If one spouse wants to marry someone else, they cannot legally do so. If one spouse passes away, the other will gain a portion of their estate even if the deceased didn’t mean to do so. Likewise, any powers of attorney will reside with the “married” partner even if they are separated. The legality of any separation agreements may also be disputed. Divorce is the final termination of marriage and will be recognized in all jurisdictions, while even a written agreement during a separation may not be considered binding.

What Can Happen With Child Custody During a Legal Separation?

Most jurisdictions will prioritize the husband as the legal father of a child. A divorce prior to pregnancy would be cleanest way to severe a husband’s potential custody rights if there is a risk the separated wife may become pregnant.

If a woman is legally separated from her husband but has a child with another man, the husband may be considered the “father” in a legal custody dispute. The biological father may not have any custody rights and no right to see the children or contribute to their upbringing. Conversely, the separated husband may be responsible for child support.

How Are Wills and Trusts Impacted?

A divorced spouse will not receive a share of the former spouses’ estate upon their death. However, in a separation, the surviving spouse may still receive financial benefits such as a pension or an interest in real property.

Although it is possible to draft around a separated spouse, a new will or trust may not be sufficient. If you don’t intend to leave your separated spouse any part of your estate, your will or trust needs to be explicit. Otherwise, probate law will determine that the former spouse is entitled to a portion of your estate.

Likewise, any new partners that separated spouses are dating will not be entitled to a portion of the estate unless they are explicitly named. Even when they are named, their gift must be explicit otherwise it not be provided.

Do I Need a Lawyer for My Family Law Issue?

If you have encountered any issue related to family law, then you should contact a family lawyer today. A skilled family lawyer can answer your questions and represent your best interests in court.