3 Things to Know Before You Separate
There may come a point in your marriage where you realize that it is not working out. As you think about ending your relationship and moving out, there are important things to know before you and your spouse officially separate.
What is the difference between “Separating” and “Divorce”?
A separation is when two people who were married or are in a common-law relationship no longer live together. Being separated does not legally end a relationship. A divorce, on the other hand, is when a court official terminates the marriage.
Prior to a divorce, couples must live “separate and apart” for at least one year. Although one partner usually moves out of the matrimonial home, this does not have to be the case. You can like separate and apart while residing in the same home so long as both people live independently i.e. sleep in different rooms do not eat together, etc.
Think Before You Move Out of the Family Home
There may be many reasons you decide to move out of your home while you and your spouse are separated. It may be to avoid fighting in front of the kids or to give each other space. If, however, your divorce goes to trial, moving out of the matrimonial home during separation can affect your claim to the house and custody of your children (for comments on child custody, see below).
In a divorce, both spouses have a right to possess the matrimonial home. This is the case even if only one spouse has the legal title of the home. When one spouse moves out and finds somewhere else to live, a judge is less likely to give that person exclusive possession of the matrimonial home. This does not include situations where staying in the matrimonial home threatens your safety.
Further, if you were the primary earner and you moved out of the family home, you may still be required to pay a lot of your spouse’s expense while the divorce is pending. This includes things like the mortgage, bills, groceries, and car payments. Paying two sets of expenses can become an extreme financial burden.
The Status Quo is Critical in Child Custody & Access Disputes
When it comes to parenting arrangements for children, the status quo is important. In determining custody and access, a judge will look to each child’s relationship with a parent before the separation. This includes things like, who takes the children to school? Who takes them to their extra-curricular activities? Who makes sure their basic needs are met (food, clothing, shelter, etc.)? It is often in the best interest of the child to keep the status quo to maintain stability in their life.
If you hope to get shared custody of the children, it is a good idea to increase your level of involvement with the children before separation. This is especially so if feel like it will be perceived that you are not as involved as your spouse.
Additionally, moving out of the house can make spending time with your children tricky. It is also possible for your spouse to make a claim that you abandoned the children. If staying in the matrimonial home is simply not an option, it is a good idea to make a temporary custody and access arrangement that is agreed upon between both spouses.
An important note is any arrangement made in the interim can become the new status quo and make its way into the final order.
You Should Work with Lawyers and/or Mediators to Draft a Separation Agreement
A Separation Agreement is not mandatory, but it is a good idea. A Separation Agreement outlines the terms of the divorce, which includes things like spousal/child support, division of property, and custody/access of the children.
A Separation Agreement can be worked out between spouses but getting a lawyer is also helpful. A lawyer can advise you of your rights and whether the Separation Agreement is fair. Although it is possible to vary a Separation Agreement if you later find it unfair, it can become very costly. It is best to spend some money on advice upfront and save money and time down the road.
If you are looking for more information or have additional questions, please do not hesitate to contact us. We will be happy to discuss your matter over with a free consultation. You can reach our office at 905-366-0202.