Chapter 5 The Separation: What Happens when One Spouse Moves Out?

• Library: Divorce & Money (Nolo) (2020 Ed.)

CHAPTER 5: The Separation: What Happens When One Spouse Moves Out?

The Separation Date

Debts and Credit

Building a Better Credit Report and Credit Score

Retirement Plans and Pension Benefits

Income and Income Taxes

Investments and Business Assets

Alimony

Social Security Benefits After Divorce

Questions to Ask an Attorney

"I told him I wanted him out by the end of the month."

"I can't stand it another minute—I'm getting out of here."

"It's over and it would be easier on all of us if you would just go."

Don't be surprised if you find yourself saying—or hearing—any of these statements before you separate. Feelings run high, and emotions seem to dictate the schedule of events in your life. Old arguments and long-held resentments commonly surface in this most difficult period, just before or during the actual physical separation. Power plays may become more troublesome as one of you may try to force the other out of your home.

No matter how you feel about your spouse, neither of you necessarily has to be the one to move—unless you or your children would be in physical danger if your spouse stayed. If your spouse has been abusive, you can get a restraining order from the court, which would prohibit your spouse from remaining in the family home. In many states, you may be able to find a kit you can use to do this yourself, without a lawyer's assistance. In other states, however, court clerks must assist you in completing papers to apply for a restraining order. Many women's legal clinics also provide help—including assistance in applying for restraining orders—for victims of domestic violence. (See the appendix.)

Even when violence is not an issue in your marriage, practical reasons might dictate that one spouse move out rather than the other. For example, many divorcing couples who live under the same roof find making agreements difficult. If one of the spouses moves out, the divorce often proceeds more smoothly and with less pain.

In the midst of ending a marriage, you may not want to look at your situation in the cold, harsh light of financial reality. But that denial could ultimately cost you thousands of dollars. Before you insist on leaving or having your spouse move out, take a little time to consider the financial consequences of the separation date.

Whether you view this time period as a trial separation (while you continue to work on your marriage) or a separation for real (as in the beginning of divorce), the following information is important to you.

Protect Your Child Custody Rights If You Plan to Move Out

If you have children, the primary caretaker might want to stay in the family home while the other spouse rents a place, housesits for someone else, or moves in with a friend. However, by moving out of the family home without your children, you could jeopardize your chances of getting physical custody of them. This is because few judges like to change the status quo when it comes to kids. So before you move out, be sure to make arrangements with your spouse as to the conditions under which you will each see the children. Define each parent's schedule with the children, including who will drive them to and from school, softball practice, ballet lessons, and worship services.

If you have any question or doubt about your rights as a parent or feel that you are being pushed away from your children by moving out of the house, or if you're considering moving out of state, be sure to consult an attorney who can help you establish custody arrangements before you move.

If either parent moves out of state with the children for six months or longer before filing for divorce, your divorce case could end up being split between two states, with the monetary aspects determined in one state and the custody aspects determined in another. Be sure to consult an attorney and think carefully before making such a move or agreeing to a move by your spouse.

The Separation Date

Determining who will move out of the family home may be the first, really difficult question you'll have to tackle. The next question—when—is also extremely important. Depending on your state's laws, the date you and your spouse formally separate can affect your credit, health insurance, pension benefits, and other assets.

Before the date of separation, you and your spouse are still married and subject to the same laws you've been living under since you first wed. After that date, however, you enter a gray area of financial and legal reality that won't be fully clarified until the divorce is final. You'll have no control over the actions of your spouse during this time, yet you are still connected in some ways—and any connection might result in your being held responsible for your spouse's bills, even bills that were racked up after your legal separation.

In addition, the value of a retirement plan, dividends, and other assets can be thousands of dollars more or less at settlement time, depending on whether your state defines marital property from the date of separation or the date of divorce.

The definition of the separation date varies between states, but generally speaking, it may be defined in the following ways:

• the date on which one spouse formally announces that he/she intends to file for divorce
• the date on which the couple begins to conduct life differently (such as when one spouse starts sleeping in a guest bedroom or occupies another section of the house)
• the date on which divorce papers are filed, or
• the date on which one spouse physically relocates from a shared dwelling.

Note that in all, but the last case, couples may continue living together after the separation date. While this can be to your advantage if neither can afford to move right away, the advantage can be tempered by the loss of privacy, the increasing hostilities as the divorce battle heats up, and the effect...