Separating from your Spouse

Earlier, we discussed the concept of trial separation, an approach that some people use in an effort to save their marriage. Here, we deal with the for-real separation period that generally precedes a divorce. Separating from your spouse is a major step that affects your entire family, legally, financially, and emotionally. From a legal and financial perspective, the fact that you or your spouse have choices regarding who will leave, and when, may be closely tied to the overall negotiations of your divorce agreement. While you may have found that discussing divorce with your spouse and children is difficult, you may experience even more intense emotions as you or your spouse prepares to leave. The leaving can make something that seemed abstract suddenly become very real.

People separate at different points in the divorce process and with different degrees of preparation. Some people separate in the midst of a fight and make no arrangements for how they will live their lives during the separation. The partners may not have yet discussed divorce with each other or their children. Others work with lawyers and negotiate a complete separation agreement prior to one or both of them leaving the marital home. Still others separate at a time when one of them is dealing with the initial emotional upheaval of the divorce and is unable to make long-term decisions. In this situation, the couple may use lawyers or a mediator or both to create a temporary agreement that addresses how children and finances will be handled during the separation. Once a limited agreement is in place, the couple can take some time to emotionally prepare for the negotiation of a more comprehensive and permanent agreement.

While much of what you need to do to get divorced is the same nationwide, there are a few issues that are handled quite differently from state to state. Separation is one of these. Whether or not you intend to use a family law attorney during the negotiation of your divorce agreement, we highly recommend that you consult with a lawyer prior to separating. This is especially true if you have children or own your home. You will want to understand your state’s laws and get some advice regarding how leaving the home might affect you as you negotiate your divorce agreement.

When you talk to a lawyer about separation in your state, you should make sure you get answers to at least the following questions:

  • Is separation required prior to getting a divorce?
  • Will I need a separation agreement to get a divorce?
  • What is considered separation? Can we just live in separate rooms?
  • Will separating affect my custody rights?
  • Will separating affect my responsibility to pay or receive alimony?
  • How do I need to document alimony payments in order to ensure they are tax deductible?

We cannot cover each state’s laws relating to separation, but we will address some common issues you will face in thinking about separation, regardless of the state in which you are divorcing.

In general, a formal “legal separation,” in which a court filing or order is involved, is not necessary. Some states require that you separate from your spouse for a period of up to a year before finalizing your divorce. However, with the notable exception of New York, it is usually not necessary to complete a court filing or specific agreement with your spouse to make the separation valid. You may just need to stop living together. Even where an agreement is not required, having an agreement that clearly states your rights and obligations during the separation is advisable.

Before you even consider when you should move out and the type of agreement you will want to have in place, you may be concerned about whether it is financially feasible for you to maintain a separate residence. However, we have to point out, at this juncture, one really important exception to our advice to move slowly: if you are in danger, you should leave, regardless. See our article on domestic violence for further information. If you are experiencing, or expect to experience, a great deal of stress staying with your spouse after your decision to divorce but feel that you cannot afford to leave, this may be a time to make use of savings or credit or even borrow from relatives or friends to get away from the situation. Sometimes even someone who is likely to receive property or support when the divorce is complete is unable to pay for a separate residence because the other spouse has blocked access to property or accounts. In these situations, the law usually provides a way to go to court and get a portion of what you are likely to receive from your divorce in advance, so that you can meet your needs until the divorce is finalized. If you want to leave but are truly unable to do so, you will want to arrange your household so that you and your spouse are as separate as possible.

Your decision about who moves out, and when, may be the first step in negotiating the terms of your divorce agreement. If you are working with an attorney prior to separation, you are likely to be advised to consider how moving out affects your bargaining position in your divorce negotiations. Consider the case where, after hearing of the husband’s decision to divorce, his spouse wants him to leave the house. If the husband is able to handle the stress of living with his eventual ex during negotiations, we may advise him to stay in order to provide an incentive for his spouse to move the negotiations forward quickly. By staying, it is possible that he will be able to get concessions in his divorce agreement that he otherwise would not have received.

It may seem easiest to leave the house, so you can get moving on with your new life. But if you are in the position of being asked to leave, you need to consider how your new life will be affected by having incomplete divorce negotiations hanging over your head for several months or even a year or more. Staying in the house under these circumstances is definitely a hardball tactic for which we, as lawyers, take some heat. However, we have seen the less acute but longer-term effects of living in limbo. In those cases, a spouse who moved out may be unable to buy a new house because he or she is uncertain about what the post-divorce financial situation will be. Even worse can be living for a lengthy period with uncertainty about how much time you will be able to spend with your children.

You might consider resolution of some divorce issues enticement enough for you to leave. However, before you make that decision, you need to seriously consider how long it may take to resolve the remaining issues. We have seen issues that people thought were settled get put back into the negotiations when they worked to finalize partial or temporary arrangements from before or during separation. We will discuss negotiating strategy in other articles on this site. For now, you should know that, when negotiating, it is best if you can resolve all issues at once rather than working piecemeal. This approach is more likely to get you what is most important to you and save you money, which can be wasted if negotiations are drawn out.

The hardball approach is not for everyone. Living together may help keep the pressure on to resolve the divorce negotiations quickly, but you have to consider the price. Continuing to live together is likely to stifle the adjustment process for you and your spouse. If you are spending your time fighting, you are unable to focus on preparing for your life after divorce. While your strategy may be to get your spouse to make concessions in exchange for you moving out, there is a chance of this backfiring if, in frustration, your spouse abandons negotiations in favor of court. You will need to consider the effects on your children as well. Having both of you in the house can be confusing and can fuel their hopes that you will reconcile. While we sometimes recommend that spouses stay in the home, you will have to consider the goals of your divorce, what is happening in your house, and whether the negotiating advantage is worth it to you.

Although it may be obvious, it is worth stating that if your spouse is threatening to leave, there is not a whole lot, from a legal and financial perspective, you can do. Being the first to go may not substantially hurt anyone’s position, but it also won’t enhance it, so you don’t really need to push for the creation of an agreement before he or she leaves. If your spouse later tries to return against your wishes, you may be able to take legal action to prevent this from happening.

If you are in the unfortunate situation of wishing your spouse would leave, but it doesn’t look like that’s going to happen anytime soon, consider these excellent tips from Diana Mercer and Marsha Kline Pruett in their book, Your Divorce Advisor:

  • Concentrate on keeping relations as peaceful as possible, even if that means ignoring hurtful comments or doing more than your share of the work around the house
  • Concentrate on the positive: you are saving money, you have backup help with the house and children, you can take more time to think about what you’d like from the end of the process without having to worry about living arrangements in the short term
  • Protect your personal space and privacy, and respect your spouse’s personal space and privacy
  • Begin to implement separation behaviors: sleep in separate bedrooms, do not engage in sexual activity
  • Agree upon what to tell family and friends so that there is no misunderstanding about what the living arrangement signifies

If you are unable to negotiate a comprehensive separation agreement before leaving the home, you can take other steps to safeguard your assets during the period that you and your spouse are negotiating (or litigating) the divorce issues. One of these steps is to take possession of certain assets during separation, especially those assets you wish to use—such as furniture and vehicles—and those assets that might be liquidated by your spouse, including precious gems and stones, collectibles, cash, and bearer bonds.

In some situations, leaving the house may be considered abandonment and may affect findings of fault, which we will discuss later. If you end up in court, the fact that you left may be a factor in the judge’s decision. You can usually avoid any negative implications if, before you leave, you and your spouse sign an agreement stating that one of you will move out and that the move is not abandonment or desertion. The agreement may also provide for the possibility that the one who moved out can move back with a specified notice.

Generally, moving out does not jeopardize your financial claim to your house. However, moving out is likely to result in you losing access to the house and any property you left behind. Your spouse may change the locks. You may then spend a great deal of time negotiating about which possessions are yours and whether you can have the use of them during the divorce negotiations. You will inevitably leave behind property that will become part of your divorce negotiations. Once you are away from the house, it may become difficult to recall all of these items, especially if they were primarily cared for by your spouse. For instance, many husbands are not very aware of the china and silver they received as wedding gifts and have added to over time. Before moving out, you should try to make an inventory of the items in the house. You might use photos or videos to speed this process and also provide a record of the condition of those items at the time you left.

In our article “Divorce and Finances,” we will discuss other protective measures you might consider, ranging from closing joint accounts to filing an injunction. In general, unless you are already in a combative mode, these steps should be taken after consulting your spouse. Cutting off access to funds or assets without such a consultation is almost certain to hurt your chances of reaching a settlement quickly.

Couples with children need to have a parenting plan in place during their separation. If you are moving away from the children and expect to later have a large share of the time with them, then you will need to remain an active, involved parent during the separation. If you cannot agree to a plan and one spouse is unsatisfied with how things are going, then you may need to resort to the courts for a temporary custody order. Although your state’s laws may indicate that such orders should not affect any permanent custody determinations, if a child is later adjusting to a particular custodial situation, a judge may be unlikely to change things.

Finally, if you do end up negotiating or being presented with an agreement that is intended to be in effect only during your separation period, be careful. You need to avoid the temptation to view such an agreement as temporary; this is because once you agree to something in a separation, it may be considered as a final resolution of that issue in your divorce. You can avoid this outcome by making sure that the agreement indicates that you are not bound to the separation agreement terms in your final divorce agreement.

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