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Legal and Parenting Implications of Separation

It's important to understand the legal implications of separation, including the difference between an informal break and a legally binding agreement. Remember that separation laws vary by state. In some jurisdictions, for instance, all assets and debts acquired after the date of the agreement are excluded from consideration as marital property. Without a legal agreement, you are considered married in every sense of the word—and held liable for every cent your partner spends.

You Can Do It!

The trend these days is for more and more couples to handle their divorces without attorneys, that is, pro se or pro per. Even if this is your plan, we urge you to consult attorneys at the outset and to put your separation agreement in their hands. In fact, we suggest that if you spend money anywhere it is up front, in drafting a separation agreement. A carefully constructed separation agreement may be the best investment you make; but if you aren't careful, a separation agreement can be your ruination as well. If your funds for legal assistance are limited, we urge you to do whatever you can—including using a credit card—to make sure that your separation agreement protects your assets, your income, your children, and your rights.

For this reason, a formal separation agreement can go a long way toward protecting your financial assets, your custodial privileges, and your personal rights. After all, the separation agreement covers essentially the same ground as a divorce agreement: division of assets and debt, child support and custody, visitation, and spousal support. A separation agreement can be the blueprint for the divorce settlement, and is not easy to change after it has been set forth in a fairly drafted agreement. (Of course, terms of support and custody or visitation are subject to change upon proof of change in material circumstances.)

Remember, a separation agreement is a binding contract—one that is put in writing, signed by both parties, and typically notarized. Each separation agreement is different, based not only on the laws of the particular state, but also the circumstances of the couple involved.

As you and (hopefully) your lawyer render this document, you will establish the ground rules: Who stays in the marital home and who leaves; who pays support, and to whom; who has custody of the children and how each of you will contribute to their support and care; and how you will divide your marital assets and debts. These issues and a few others, including how you deal with income and debt accrued during separation, will be part of the boilerplate in any separation agreement.

But there are a few other points you may want to attend to as well:

  • Continuation or cessation of certain benefits, ranging from medical and dental insurance to sharing a credit rating.
  • The issue of who may deduct alimony payments on the tax return.
  • College expenses. If you have toddlers, this is so far off as to seem irrelevant, but the years pass quickly. Unless this is spelled out, the noncustodial parent may not be required to contribute. (College tuition is not necessarily considered mandatory in every case. It usually depends on the lifestyle of the parents and the law of the state you are in.)
  • Rights to a pension benefit.
  • Access to liquid assets like cash, bonds, and credit cards.
  • Ground rules for dealing with credit cards owned jointly.

The Family Plan

You Can Do It!

Make sure that even though you are moving out, your spouse understands you are not giving up the right to property. Some spouses, out of guilt, may give the other so much money that they have to move into a single room where they cannot bring the children to visit. Don't become one of them. Ask your attorney to protect you as vigorously as possible through a legally binding separation agreement.

For couples with children—who must interact with each other to co-parent, even in the face of divorce—a separation with a parenting plan goes a long way toward easing conflict. Only after time apart can these parents come back together and cooperate enough to co-parent again. A couple without children can make this break and need never come back together again. But for parents, this is impossible. If you're in this situation, you're stuck with your soon-to-be-ex-spouse for better or worse. You've got to figure out some way to manage the conflict and get over it so you can see your ex from time to time and reestablish a businesslike relationship that works. Psychologists advise these parents to create every opportunity for complete separation so that full emotional disengagement can take place. After a period of time—generally about a year—they can relax the separation. Without the hiatus, say psychologists like Baris, some parents may find it more difficult to end the conflict.

In light of all the work you and your spouse will need to do during your physical separation, this is a poor time to invest in a new relationship. You must give yourself the time and space to find some new personal definition and direction. A time of separation is a perfect time to look inward, asking yourself how you contributed to the relationship's end. Some people have difficulty assuming responsibility for creating negative situations for themselves and so look to blame anybody or anything else. You must let go of this “victim” mentality if you want to avoid making the same mistakes again.

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Excerpted from The Complete Idiot's Guide to Surviving Divorce © 2002 by BookEnds, LLC. All rights reserved including the right of reproduction in whole or in part in any form. Used by arrangement with Alpha Books, a member of Penguin Group (USA) Inc.

To order this book visit the Idiot's Guide web site or call 1-800-253-6476.


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