What is a Therapeutic Separation Agreement?
A therapeutic separation agreement is often recommended for couples that are highly conflictual and exhibit high levels of resentment and anger towards each other. High levels of anger and resentment often lead to problematic decision making. Part of what happens in a therapeutic separation agreement is that the parties are required to set the anger aside to cooperate with respect to transitional issues, such as custodial arrangements for the children, who will reside in the home during the litigation process, who pays household expenses, how the advance on the sale proceeds will be divided at closing, who will take on the debt obligations, etc . When the parties can set aside the anger and resentment through reliance on this type of agreement, it is often the case that the couple is able to cooperate in the past several months between the signing of the agreement and a legal proceeding, so that by the time the legal process commences it is more of a paperwork matter that culminates in an agreement. If the parties sign a separation agreement without doing this intermediate step, it is often the case that the conflict level related to the negotiations that ended in a stalemate is repeated when the legal proceedings begin. As a result, the idea of having a therapeutic separation agreement is to set aside the anger and residual resentment temporarily so that a meaningful agreement can be negotiated.
Advantages of a Therapeutic Separation
Emotional healing ranks high on the benefits list. People often become so absorbed by the daily grind of their marriages that they forget what drew them together in the first place. A divorce or even legal separation is a major life event that takes time to process. Therapeutic separation provides physical separation from the stress of everyday family life.
A therapeutic separation agreement may help a couple realize the value of their relationship. Being apart forces couples to re-evaluate their relationship. Some couples reconnect during this time and realize that they enjoy being with each other. Others decide that life is better apart. In both instances, the separation period has brought out issues that require resolution.
Essential Components of the Agreement
Perhaps the most significant feature of therapeutic separation agreements are that there is no one right way to structure the agreement to fit your situation. That said, there are key components that are almost always present in effective agreements. Depending upon your particular circumstances/contracts/personal issues, the following may well be some (if not all) of the topics discussed and possibly incorporated into the final agreement:
- The period of time the parties to the agreement will be separated. While the default period for a therapeutic separation contract per the Georgia Court of Appeals is 90 days, the parties have the ability to extend the agreement for as long as appears to be in the best interest of the parties and their particular circumstances.
- Provision for the parties to live apart – often under very strict terms – during the period. Depending on the severity of the circumstances that lead to the therapeutic separation, living arrangements may be made where one party moves out of the residence and into another location.
- Outline of when contact/communication can occur. Depending upon the degree of the issues, "contact" may not be the best thing for the parties at the moment, so this may mean, for example, no phone calls, text messaging or emails.
- Outline of when contact/communication is absolutely prohibited, such as when one party has been physically abusive, the crisis plan is in effect and protecting the victim’s health and safety is of the utmost importance. This is the "no contact" provision that many people associate with restraining orders, but that can be an option in a TSO if safety needs to be ensured.
- Provision regarding contact with the children, or parenting time, visitation and child support if applicable.
- The process for reinspecting the situation, to determine after the initial period of time if acceptable progress has been made and if the parties can resume their prior relationship without endangering each other.
- Provision regarding the end of the therapeutic separation agreement. When parties divide assets and liabilities, they typically need to discuss whether any changes in this regard will be made in the event the relationship continues post-separation, and how equally they would like to divide those assets and liabilities.
- A "must complete" list. Although the parties decide what actions would be appropriate for each as part of the separation agreement, this must-complete list might include alcohol treatment or counseling, participation in supportive groups such as Al-Anon for the spouse of an alcoholic, or an arrangement for frequent interaction with a therapist.
- A statement affirming the consent of both parties to the Therapeutic Separation.
- Voluntary execution of the agreement.
The underlying goal of the TSO is to help partners transform their relationship into one that can work positively in the long run, if it is desirable for the parties involved to stay together after the separation period. TSO agreements are far less about "who gets what" in regard to assets and liabilities than is typical of many other primary divorce or legal separation stipulations, and are entirely voluntary, unlike some other agreements that fall under the regulations of the court system in family law.
Legal Considerations
The enforceability of any separation agreement, including one entered into for therapeutic reasons, will be assessed in the context of a four part test which will consider the following question: Does the agreement embody the fully considered wishes of the parties, is it fair and reasonable in all of the circumstances, are the parties not misrepresenting their financial circumstances, and are they each able to carry out the terms of the agreement. However, the legal context does not provide a supportive framework for therapeutic separation agreements if the application is brought in the context of the Divorce Act. That fact does not mean that the court may not give effect to a therapeutic separation agreement but it means that the consideration of the enforceability question must be dealt with according to the family law principles.
There are no provisions in The Family Property Act or The Family Maintenance Act that address the enforceability of marriage separation agreements. Even if enforceable and valid under the Divorce Act, these types of agreements are excluded from the consideration under The Family Property Act or The Family Maintenance Act. There are no known decisions in Saskatchewan, Canada that provide guidance with respect to these agreements. There is only one reported Manitoba decision, Lammers v Lammers, [1988] 3 W.W.R. 299, that deals with these agreements. The court ultimately concluded that the separation agreement in that case was binding on the parties. The court also framed the test as one of finding a reasonable balance between the public policy of protecting individuals from oppressive contracts on the one hand, and freedom of contract on the other hand. Freedom and autonomy were relied upon within the context of the overall scheme of the Family Maintenance Act. Ultimately, circumstances in Saskatchewan are different and require a more comprehensive assessment and analysis of the separation agreement and the circumstances of that marriage in order to decide on the enforceability of the separation agreement.
Who may Benefit from a Therapeutic Separation?
A therapeutic separation may be ideal for:
- Couples facing complex issues including mental illness, addiction, abuse and manipulation. There are times when a marriage has been torn apart by the devastation caused by addiction, mental illness or abuse. I have seen matters where one parties’ depression rendered them virtually paralyzed. Or where a spouse lost all of the family’s financial assets to gambling or was undermining her parents with drugs that were robbing the brains ability no have any sort of impulse control. In these difficult circumstances a temporary separation can provide each spouse with the time and space to get the help they need. The legal framework of a separation agreement sets clear boundaries of time, support and limits to each spouses’ autonomy. This "living apart" approach provides the security necessary to work on health issues outside of the relationship.
- Parties on the "enthusiastic" divorce track. My experience with amicable divorces has been overwhelmingly positive. When a couple plans to separate and move on with their lives in a respectful and structured manner, a therapeutic separation may be ideal. We often see this kind of person-to-person divorcing parties in circumstances where there is no significant asset division , no children and no deferred compensation between spouses. Couples who are nearing a 50/50 split tend to benefit from a separation as a time-out to live independently for at least a few months before making their final arrangements.
- Couples with very young children. Parents with children who are babies or toddlers have the option of drafting a legal separation agreement that demonstrates to their young children that their parents still care about, and support, each other. While the kids feel supported in the home, the parents can take time to think about how they want the future family to look. Typically, when the parents are separating for a period of several months, they will live in the same city and school their kids in the same programs. Going through the process of separation, divorce and settlement can reduce the stress that is inevitably created in all relationships. Having a legal framework through which to gain some distance from each other, gives a couple greater time to consider their options. As a result, a separation is a reasonable option if you’re looking for a home, somewhere permanent in your jurisdiction, a school for your children, and are unsure of your partner’s intentions, or how to proceed.
How to Create a Therapeutic Separation Agreement
In order to get to a place where the Therapeutic Separation makes sense, there typically needs to be a process. Sometimes it is very clear that people are at an impasse in the marriage and that without help, this will be an on-going problem. A Therapist can work with both parties to build a case for what they feel is in the best interest of the parties and/or the children. An individual not already working with a therapist, can schedule a consultation to talk about concerns.
As mentioned above, sometimes a Therapist will say that this would be helpful but not necessary and a therapist is not always necessary for the separation itself, but it is in the clients’ best interest to talk to one for some or all of the following:
Once there is a therapist involved, the therapist will then meet individually with the client at times before meeting with the client together. The purpose of this step is to try and gain some idea of what needs to happen in order for the marriage to survive and identify some of the problems. The therapist will also help educate the parties on the next steps.
Sometimes it is clear that the parties need to separate before they can move forward, some times there is a basis for trying to hang in there.
Once the therapist feels confident that a separation is the way to go, the therapist will then meet with both parties to create a timeline and a plan to make the Therapeutic Separation successful. This is where the therapist will educate the parties on what should happen during the therapeutic separation.
Once the plan is created by the therapist, and sometimes tweaked a bit between the therapist and the separated parties, a lawyer is then called in to draft what has been agreed upon. This allows the parties to have some flexibility about when the agreement is written as well as the terms on which the agreement is based.
When the Therapeutic Separation Agreement is drafted by the lawyer, then both parties sign the agreement, typically with the therapist present, as the therapist will then have a copy to make sure that the orders/agreements are being upheld within the therapeutic separation context.
Successes and Obstacles
Therapeutic separation agreements can pose various challenges for the unprepared. It is important to become educated on what these challenges are and how to solve them.
While a therapeutic separation agreement can be a useful step in the right direction, there are many challenges presented in formulating this document. One of the most common issues is the lack of immediate recourse because the agreement is not legally binding until it has been accepted by the court. This does not mean that participants are free to choose whether or not they will adhere to the terms of the separation. You must be willing to comply with the agreement, or you risk jeopardizing your chances of having the terms approved . The most effective way of ensuring compliance is promoting emotional healing. When you take an honest approach to evaluating the real issues within your relationship and you honestly seek the truth and achieve reconciliation, the chances that you will actually adhere to the terms of the agreement increases.
There are various ways of ensuring compliance with the terms of a separation agreement prior to having it approved by the court. You can adjust your social and work habits to reflect more simple living, you can relocate, you can reevaluate any financial obligations, etc. Having your therapist or psychiatrist draft up a report detailing the results of your separation can be useful too, because it can be pleasing to the courts.