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 to planning for your separation.

By , Attorney · Cooley Law School
Updated by E.A. Gjelten, Legal Editor
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Whether it's your choice 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 some states.

Do Spouses Have to Live Apart During a Divorce?

Most states—including California, Texas, Florida, and New York—don't require spouses to live separately before they can get divorced. That means that in most of the country, you may live in the same house as your spouse while you go through the divorce process.

However, a few states do require a period of separation before couples may file for divorce, get a no-fault divorce, or finalize their divorce. For example:

  • No couples may get divorced in North Carolina unless the spouses have lived separate and apart for a full year. (N.C. Gen. Stat. § 50-6 (2023).)
  • In South Carolina, you must have lived separate and apart from your spouse for a year before you may file for a no-fault divorce. (S.C. Code § 20-3-10 (2023).)
  • Depending on whether you have minor children, Louisiana has different separation requirements to get a no-fault divorce. Without children, you must have been living apart for 180 days. But the separation period is 365 days if you have children. (La. Civ. Code art. 103, 103(1) (2023).)
  • In Kentucky, you must have been living apart from your spouse for 60 days by the time the court enters your final divorce decree. (Ky. Rev. Stat. § 403.170 (2023).)

Usually, "separate and apart" means that you can't share a home or sexual relations. But there are exceptions. For instance, you may meet the separation requirement in Kentucky if you and your spouse are living under the same roof without sexual relations.

You should know that even if you live in a state that requires living apart before divorce, that does not mean that you need to get a legal separation (which isn't even an option in all states). Learn more about the requirements to file for divorce in your state.

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 home with the kids while the other spouse finds another residence.

However, when both parents plan on being active caretakers for the children, 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 judge 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, it might make sense for that spouse to move out until the the question of what will happen to the family home after the divorce is resolved (by the judge or in your divorce settlement agreement).

Does Moving Out Affect My Property Rights?

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

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, those actions might be considered abandonment. In some circumstances, a spouse's abandonment of the children might affect a judge's decisions about child custody or visitation.

A different kind of problem arises when a spouse 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. When judges are deciding what custody arrangements are in the children's best interests, many states require them to consider the parents' willingness to support each other's relationship with the kids. When one parent denies the other parent time with the children without a good reason, the judge might find that behavior to be a form of "parental alienation," which could affect the custody decisions.

Most of the time, however, when a parent decides to leave the marital home, both spouses are aware of the move and have a plan for continuing parent-child contact. If this is your situation, be aware that some judges might be inclined to maintain the status quo for the children once the divorce is finalized. When that happens, the parent who moved out could feel 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 parenting schedule during the separation. Your agreement should also make it clear that the parent who moves out isn't giving up any rights by doing so.

If you anticipate that your divorce case could 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 protect your parenting rights.

Do We Need a Written Separation Agreement?

If you're planning to get divorced, you're probably experiencing at least some communication problems in your marriage. Even if you and your spouse are on good terms when you first separate, relations might deteriorate as the divorce progresses. Having a written separation agreement can prevent future arguments or uncertainty.

Your written separation agreement can serve as your relationship roadmap until the court accepts your divorce filing. At that point, the judge may enter any necessary temporary orders aimed at maintaining the status quo in your finances and access to your children.

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 write it for you or at least review it. But that's not necessary. Even though it can be difficult to enforce a separation agreement unless a judge has made it part of an official court order, a signed, written agreement is still a binding contract. And you can use the agreement later to help prove your intentions later if the divorce gets messy.

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

  • Finances. States have different rules about whether separation affects spouses' property rights. In some states, property or income that a spouse acquires or earns after the date of separation is that spouse's separate property. Similarly, debts that a spouse takes on after separation are that spouse's separate obligation. In other states, property acquired and debts incurred during the marriage will continue to be considered marital property until the legal divorce process starts or is finalized. If you live in one of those states, you might want your separation agreement to state that neither spouse may accrue debt on joint credit cards, and that any debt a spouse takes on after the separation date belongs solely to that spouse. You might also want to decide which spouse will be responsible for regular household expenses, such as utility bills, tax payments, and groceries. If possible, consider putting each bill in the name of the spouse who has agreed to pay it.
  • 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.
  • Spousal support. You might decide that one of you will provide some financial assistance assistance to the other, to help cover expenses until you start the legal divorce process (when a spouse may generally request temporary alimony).

Remember that 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.

Next Steps in the Separation Process

Divorce takes time. It could be up to a year (or even more) from the point that you file the initial paperwork to the moment the judge finalizes your case. Even if you have an amicable divorce without many hiccups, you might be able to get your final divorce in two or three of months (depending on any waiting periods in your state and court backlogs in your county). Either way, you should have a plan while you wait. Here are some of the things you should consider.

Bank Accounts and Safe Deposit Boxes

You should open your own separate checking and savings accounts. It's also a good idea either to freeze all joint accounts or close them and deposit the money in one frozen account. You and your spouse may also opt for an "escrow" account, which an officer of the bank is assigned to monitor. The officer must give written authorization before any transaction may be conducted involving the account.

If you have a safe deposit box with your spouse, you should be able to request that it be frozen. Otherwise, at least try to make an inventory of the contents, and take photos. You can ask a bank officer to sign the inventory.

Credit Cards

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. You should also close all joint credit card accounts as soon as possible. If you can't close those accounts, at least ask the company to place the account on inactive status so that no new additional charges may be added.

Other Lines of Credit

If you have an equity credit line on your home or a security margin account (which allows either spouse to withdraw money, using a stock portfolio as security), contact the financial institution or broker and request that the credit line be frozen.

List Your Assets and Debts

You and your spouse should create a list of all your assets (including personal property) and debts. The list should identify what you believe is separate property and what is marital property. If the two of you have a difference of opinion about anything on the list, you can try and work it out before asking the court to get involved.

Identify Points of Agreement

Your period of separation can give you the time to work out the terms of your divorce calmly. Try to talk through issues like alimony, child support, child custody, and how you'll divide your property.

If you're having trouble agreeing about anything, mediation can help you find solutions and negotiate compromises. It might help to know that having a complete settlement agreement means that you'll be able to save a lot of money by filing for an uncontested divorce, because that could allow you to handle your divorce without hiring lawyers.

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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