How to Separate: Protect Your Rights Before Divorce

Reduce the stress of the divorce process and protect your interests with this easy-to-follow legal guide that helps you make a plan for your separation.

By , Attorney

Whether it's your decision or your spouse's, deciding to end a marriage is often devastating for a family. But you can minimize the impact of this upheaval by creating a thoughtful plan for your living arrangements during the divorce, and by starting to prepare for your new life.

Smoothing the transition for yourself and your family will involve effective communication with your spouse. But good communication doesn't require living together: Physically separating sometimes helps spouses reach an agreement about the terms of a divorce and is actually required before a divorce in many states.

Do Spouses Have to Live Apart During a Divorce?

Depending on where you live, you might not have a choice about living apart—again, many states require that spouses separate before the court can grant a divorce.

States With "Separate and Apart" Requirements

Your state might require you and your spouse to live "separate and apart" for a specific period of time before you can file for divorce or before a judge can finalize your divorce. Each state's rules are different, though, as you can see from these examples:

  • A Pennsylvania court can grant a divorce on grounds of irretrievable breakdown when the complaint states that the parties have lived separate and apart for at least a year. (23 Pa. Cons. Stat. Ann. § 3301 (2021).)
  • North Carolina allows couples to divorce when there has been adultery, desertion, physical cruelty, or habitual drunkenness. When none of these "grounds" (reasons) for divorce applies, North Carolina requires the spouses to have "lived separate and apart without cohabitation for a period of one year" before they can file for divorce. (N.C. Gen. Stat. § 20-3-10 (2021).)
  • When a couple in Kentucky is divorcing because the marriage is irretrievably broken, the court can't enter a final divorce decree until the parties have lived apart for 60 days. "Living apart" includes residing under the same roof without sexual cohabitation. (Ky. Rev. Stat. Ann. § 403.170 (2021).)

Usually, "separate and apart" means that you can't share a home, but as you can see with the Kentucky example above, there are exceptions.

States That Don't Require Separation

Most states (especially no-fault divorce states) actually don't require spouses to live separately before divorce. California, Texas, and Florida are examples of states that don't require separation. If you live in one of these states, you're free to live in the same house as your spouse while your divorce is pending.

If you're unsure whether your state requires you to separate before you file for divorce, you can research your state's divorce laws, contact a family law attorney near you, or try a local legal aid department.

When We Decide to Separate, Who Should Leave?

After you and your spouse make the decision to separate, you'll need to decide who should move out of the family home.

When you have minor children, it often makes sense to arrange for the children to stay in the family home while the divorce is pending. If one parent will be the primary caretaker for the children, it's probably best for that spouse to remain in the family home while the other spouse finds another residence.

When both parents plan on being active caretakers for the children, though, deciding which parent stays with the kids can be tricky. One option to consider—sometimes called "birdnesting"—is to have each parent live in the home with the children for alternating periods, like a week at a time. If you can't agree on who will leave the home, you'll need to ask the court to decide for you, which can cause turmoil within the family.

When you don't have minor children, choosing who should stay in the home might be more practical than emotional. For example, if one spouse has a supportive friend or family member offering a spare room during the divorce, it might make sense for that spouse to move out.

Does Moving out Affect My Property Rights?

In the past, a spouse who moved out of the house gave up the right to keep it after the divorce. Today, it's less common for the court to award an asset as significant as real estate based on who remained in the home. Instead, when spouses can't agree on how to divide marital property, judges use the state's property division laws to determine how to distribute the marital assets (and debts).

In some states, courts consider all property acquired during the marriage to be marital property—regardless of which spouse purchased it—and split it equally. In other states, courts have more discretion to divide marital property fairly, but not always equally. (You can read about property division by state for more information on these concepts of "community property" and "equitable distribution" in divorce.)

Does Moving out Affect Custody and Visitation?

When one spouse moves out of the house without telling the other, doesn't contact the children, and doesn't provide support—or otherwise disappears during the divorce process—the court can charge that spouse with abandonment. A spouse who has abandoned the marriage might lose custody or visitation rights.

On the other hand, a spouse who moves out of the marital home, takes the children without the other spouse's consent, and doesn't allow the other spouse access to the children creates a different problem. When a spouse intentionally (and without justification) denies the other spouse time with the children, the court can find that behavior to be parental alienation. That finding that can jeopardize the spouse's future custody rights in the divorce.

But in most divorce cases, when a parent decides to leave the marital home, both spouses are aware of the move and have a plan to ensure that the spouse who moves out continues to provide support for the children. If this is your situation, be aware that a judge might be inclined to maintain the status quo for the children once the divorce is finalized, leaving the parent who moved out feeling penalized for leaving, even though separating was in the children's best interests. To avoid this situation, be sure to create a written parenting agreement that establishes a separation parenting schedule and notes that the parent who moves out isn't giving up any rights by doing so.

If you believe your divorce case might involve a contentious custody battle, you should consider consulting an attorney before moving out of the family home. An experienced lawyer can help you take steps to ensure you don't give up any parenting rights by moving out.

Do We Need a Written Separation Agreement?

When a couple is divorcing, it's possible, if not likely, that communication is broken to some extent. Even if you and your spouse are on good terms when you separate, relations might deteriorate as the divorce progresses. Placing the terms of your separation in writing can prevent future arguments or uncertainty. And if you decide to remain living together during your divorce, a separation agreement is even more important, to show your intent to separate on a fixed date. Likewise, if you live in a state that requires you to separate for a period before the court accepts your divorce petition, a separation agreement is a good way to prove your date of separation.

Your written separation agreement can serve as your relationship roadmap until the court accepts your divorce filing and is able to enter temporary orders, if needed. (Temporary orders can address child support, child custody, spousal support, and property division.) That said, if you can't agree on how you'll handle things during the separation or can't get your spouse to sign a separation agreement, you can ask the court for temporary orders before beginning the divorce process.

What to Include in Your Separation Agreement

Your separation agreement can be as informal or formal as you'd like. The most important aspect of any agreement is that it's in writing, dated, and signed by both spouses. You can sign the document in front of a notary public or ask an attorney to draft it for you, but it's not necessary. Even though courts generally don't enforce a separation agreement unless it's signed by a judge, you can still use your agreement to help prove your intentions later if the divorce gets messy.

Here are a couple topics to cover in your separation agreement:

  • Rules about your finances. During separation, most states continue to apply the same rules for marital property as if you were married. For example, if you're living apart during the divorce process and one spouse accrues credit card debt on a joint account, the court might categorize that as marital property and require both spouses to pay it. So, you should consider specifying in your separation agreement that neither spouse can accrue debt on joint credit cards and that any debt accrued from the date of your separation belongs solely to the spouse who incurred it. Additionally, you should decide which spouse will be responsible for regular household expenses, such as utility bills, tax payments, and groceries. If possible, consider putting each bill into the name of the spouse who has agreed to pay it.
  • Rules about your children. If you have minor children, be sure to specify how each spouse will be providing financial support for the children during the separation. You should also be very clear on the terms of custody and visitation. For example, if one parent moves out of the home and expects to visit with the children for dinner twice per week and have overnight visits every other weekend, you should include this schedule in your separation agreement. Don't forget to outline the details on who will provide transportation for each visit. And, as discussed above, make sure that the agreement notes that the parent who moves out isn't giving up any rights by doing so.

Despite the guidelines above, you might have a complicated situation or simply some uncertainty that makes talking to a lawyer a good idea. If you're not sure what to include in your separation agreement, speak with an experienced attorney before you separate from your spouse.

Next Steps in the Separation Process

Divorce takes time. It could be up to a year from the point that you file to the moment the judge finalizes your case. On the other hand, if you have an amicable divorce without many hiccups, depending on your state, you could be able to divorce within 30 days. Either way, you should have a plan while you wait.

Get your own credit card. Divorce can wreak havoc on your credit, so getting your own credit card now can help you build your credit and help you remain independent from your spouse. Opening a separate credit card account or bank account (covered below) will also help you establish your separation date in the divorce. (When it comes to property division, child support, and spousal support, establishing that separation date will be an important piece of information for the judge.)

Separate your bank accounts. Next, close your joint bank accounts and open separate accounts. If you can't agree on how to divide the money in your accounts, or if you have questions about how to allocate your paychecks, keep the joint accounts open but open an individual account as well.

Create a list of property. Begin creating a list of personal property that belongs only to you and present it to your spouse. If you have a difference of opinion on anything, you can try and work it out before asking the court to get involved.

Identify points of agreement. Your period of separation can allow you to work out the terms of your divorce calmly, if your spouse is willing. Try to talk through issues like spousal support, child support, and child custody. If you believe you and your spouse can work together to negotiate the terms of your divorce, you can look into DIY divorce services together, or consider hiring a professional mediator to help you get past any disagreements. Thoughtful planning can go a long way in a divorce. So too can healthy communication. As you set out on the next phase of your life, take the time to chart your course, including when it comes to establishing a healthy living situation that protects your rights. As the divorce progresses, you'll be glad you invested your energy early in the process.

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