If you and your spouse do not want to live together but cannot or do not want to divorce, you can get a separation agreement. A separation agreement spells out how you and your spouse will handle various issues after separation, such as child support, child custody, maintenance, arrangements for co-parenting, and other issues. After your spouse signs the agreement, you can file it and live separately.
However, your spouse may not want to sign a formal separation agreement for a couple of reasons:
- They do not want to end their relationship with you
- They cannot afford to get separated
- They disagree with the terms of the separation agreement
If this is happening, do not force your spouse or coerce them to sign the separation agreement — they can use this against you in court. Manipulation, threats, coercion, and other unreasonable attempts to convince your spouse to sign a separation agreement can result in courts ruling against the enforceability of the separation agreement. So you must obtain a signature through lawful means.
So how do you get a separation when one partner doesn’t want to? You can take some of the potential actions below if your spouse refuses to sign the separation agreement:
Get A Mediator
A mediator can help negotiate a peaceful resolution between a couple so that both parties agree with the terms in the separation agreement.
Unlike arbitrators, mediators do not have the power to impose settlements. However, they can help both parties reach a mutually agreeable settlement. Since they are neutral third parties, they can smooth out communication issues between spouses. They can also assist in the separation process, give relationship-building advice, and suggest other options that may benefit you.
Once you and your spouse reach an agreement, both parties will sign the document. This written agreement is legally binding and enforceable by the court. As such, if the spouse who initially refused to sign the agreement does not follow the terms of the mediation agreement, they will be subject to legal action.
Seek Legal Action
In some circumstances, you will have to initiate legal action for a decree of separation. For example, you may have to seek a court judgment if your spouse refuses to separate or go through mediation. You may also have to go through this route if you and your spouse attempted mediation but failed to come to an agreement.
You can go to court to settle matters such as property division, child custody, and child support. In some cases, you can even get a legal separation from the court. However, the court will only decide if legal separation is necessary if you meet grounds for separation. These grounds can vary by state, so you must check your state laws to see if any conditions apply to you.
Taking New York as an example, a couple can legally separate if one of the spouses:
- Has been experiencing cruel and inhumane treatment by their spouse that endangers their mental or physical well-being to the point where it would be improper or unsafe for them to continue living with their partner
- Has abandoned (i.e., moved away), locked out, or sexually abandoned the other
- Has neglected or refused to provide support for the other when they are responsible for doing so
- Has committed adultery within the last five years without the other spouse’s participation or permission
- Has been incarcerated for three or more years during the marriage
Even if you meet your state’s conditions of a legal separation, it can still be a time-consuming and costly process to separate. After getting a court-ordered separation, you can ask the court for a divorce if you and your spouse have lived separately for more than a year and fully complied with the court order.
File for Divorce
If your spouse isn’t willing to sign the separation agreement, it may be easier to go through a divorce instead. Unlike separation, divorce does not require your partner’s signature. After confirming that you are eligible for a divorce in your state, all you have to do is:
- File the necessary paperwork with your county’s court clerk
- Serve your spouse the divorce papers
Depending on your state, your spouse will have a certain number of days to respond to your petition. If they don’t respond within that time, you will likely be granted a divorce by default. If they respond with a counterclaim and you cannot come to an agreement after that, then a court date will be established where you can have a divorce hearing.
During the divorce process, it isn’t uncommon for the spouse who initially refused to sign the separation agreement to sign it in the end. So talk to them to see if they’d prefer getting separated or divorced. Remind them that a divorce legally ends the marriage, while a legal separation puts the marriage on hold.
Protect Your Interests
If your spouse doesn’t want to sign the separation agreement and refuses to go through mediation, you must protect your interests by separating as many assets as possible. Keep in mind that you should not dispose of or remove assets from the marital property without your spouse’s agreement. Here are some things you can do to protect yourself financially:
Make a list of your marital and individual assets.
It would be beneficial for you to know what property would be up for division and how the court will divide it in the event of a court-ordered separation or divorce.
Depending on your state, the court will split your assets under community property or equitable distribution laws.
Community property states divide marital assets 50/50, while equitable distribution states consider multiple factors to divide property, which may not always be 50/50. Make sure you look up your state laws surrounding this issue to prepare yourself adequately.
Cancel joint credit cards and separate debt.
When you get married, you can also inherit your spouse’s debts. If possible, you should pay off joint debts with your spouse or divide and transfer debts into individual credit cards.
Get financial statements and tax records.
You should make copies of these records so you can use them as evidence you can present to the court when it’s time to divide property.
Secure cash or liquid assets by setting up a bank account in your name.
If you do not have a bank account of your own, you need to make one under your name. Do not continue withdrawing or using money from your shared marital account. Doing so can lead to problems during the separation and divorce process.