Divorce Issues – A Separation Agreement Explained
Divorce is one of the most painful, stressful, emotionally debilitating and dehumanizing experiences most individuals will ever suffer. Facing any serious legal problem is never easy. Anxiety, financial worries and fear can cast a dark cloud over your days and your future. While some individuals or couples attempt to wade through these treacherous waters with a lawyer, sound advice from an experienced attorney can help to stem those emotions and provide hope in their place.
Working together with a compassionate and settlement-oriented attorney helps to establish an atmosphere of mutual respect and cooperation with the other side. Commonly you and they will discover “win-win” solutions that preserves everyone’s dignity and, importantly, their net worth, so that both can move on to successful lives after divorce. If you’re contemplating divorce, but don’t know the first thing about what to do, you may need some guidance on where to start. Many people assume that the first step is the filing of a Legal Separation, or a Petition for Dissolution, but these are two different things, with different legal consequences. Below are some of the issues associated with Separation.
A separation may be one of several different arrangements. A trial separation is just as its name implies – a period of time when one spouse moves out of the family home while the couple tries out a period of separation, to determine if this is what they really want. A trial separation can be anything from a period of time in which one party is sleeping on a friend’s couch while the couple “cools off,” or it can be more formalized, where the party who leaves rents an apartment, buys furniture, and starts his or her separate life.
If you and your spouse are discussing a trial separation, and aren’t sure that you really want to end your marriage, it is advisable to draft an informal separation agreement that covers some of the issues that will arise during this period of time. For example, you will need to decide if you and your spouse will continue to keep your money in a joint bank account, if you have one, or if you will open separate accounts. You will need to decide if your paychecks will go into your separate accounts, or the joint account. You will need to determine who will pay for community debts, like the mortgage, credit card bills, and household expenses. If you own a house, and one spouse moves out of it but continues to make payments on the mortgage, will that spouse be entitled to reimbursements or credits for those payments? Additionally, if you have children, during a trial separation, it will be necessary to determine a schedule of custody and visitation, and to figure out who will be responsible for what costs for childcare and other child-related expenses.
A separation agreement that covers these issues at the outset is a good idea because it spells out each party’s rights and obligations, and reduces the areas of conflict between you during a period of time when there is already a great deal of conflict. Further, if it turns out that the separation becomes a permanent one, or evolves into a divorce, you have a starting point for a permanent agreement on these issues.
A permanent separation is when you are living apart from your spouse with no intention of reconciling the marriage, but for whatever reason, have decided not to divorce. These reasons can be religious, cultural, or because one spouse wants to keep the other spouse on an insurance plan, which would be discontinued in the event of a divorce.
When a couple decides on a permanent separation, it is important to determine the date that this occurred, because it has legal significance. It may be the date that one party moved out, which is easily determined, or it may be more elusive, as in the case of a trial separation that has become permanent over the passage of time. The date of separation may simply be the date that one party in a trial separation decides that he or she is done with the marriage, and does not want to try and work things out. Whatever the precipitating event is, the date of separation is important, because after that date, a party’s income and debts incurred from that date forward become the separate property of that party. So if, after the date of separation, one party wins the lottery, or runs into a bus filled with nuns and orphans, that income or liability become that party’s separate property or debt.
A legal separation is similar to a divorce in that a formal document is filed with the court, which can make orders dividing marital property, granting spousal and child support, and making determinations about child custody, but it is different from a divorce because the parties are still married. Neither party can remarry after the conclusion of a legal separation, and you would still need to divorce if you wanted to marry again. A legal separation may be the route you choose if you don’t yet meet the residency requirements within the state or county, but you want to formalize the separation of property and assets. There is also no six-month waiting period after the filing of a legal separation as there is in a divorce. If it is important to obtain a judgment in less than the six-month period that defines the parties’ legal rights and obligations, such as for tax filing purposes, or if you anticipate that your spouse is going to be sued and you want to protect your separate assets, then you might consider an action for legal separation.