General Question

Jude's avatar

What exactly happens when one spouse files for separation (what happens to the home, for ex)

Asked by Jude (31977 points ) August 29th, 2010

One spouse wants to file for separation. Say, in this case, it’s the Mother. The couple has one child.

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15 Answers

iamthemob's avatar

I would think that very little should happen in terms of property rights or parental rights automatically. If that were the case, spouses could potentially evict the other, or terminate parental rights by filing for a separation out of spite.

It differs state by state, but I would have trouble understanding if there were automatic assumptions without a hearing or a party mediation. Spouses can also formalize informal agreements regarding access to the family home and visitation if the process appears to be relatively cooperative.

SeventhSense's avatar

As long as it’s amicable and uncontested they usually split the assets 50/50 but that’s not until the divorce is finalized. Each state/country has its own specific laws.

casheroo's avatar

In the US?
Not all states have legal separation. I live in PA and there is no separation…just divorce or marriage.
If someone gets divorced, that sort of thing gives divied up in the divorce, either by both agreeing to it, or a lot of legal battling (I imagine)
I’d say though, that mothers usually have custody of the children..but sometimes the dads do. That part is usually figured out during the divorce, but I’m not sure if child support is a separate thing.

marinelife's avatar

They need to work out a property settlement much like they would in a divorce, but they are both still responsible for their debts including those incurred during the sepraration.

iamthemob's avatar

@marinelife:

Is it automatic that both spouses would be responsible for marital debt during a legal separation? I’m betting that in cases where one of the spouses incurred a lot of debt fraudulently during this period (particularly in the case where they were holding themselves out as still married) there’s a defense to the other spouses responsibility for the debt.

skfinkel's avatar

@casheroo Here’s a newsflash: in almost all states, the default situation for custody is 50/50 split—regardless of age. (ie, nursing babies can go 50% time to the father.) This started being commonplace in the 1970’s. Utah seems to be the exception, where the mother still has more custody rights.

iamthemob's avatar

@skfinkel:

Are you sure you’re not talking about legal custody? In terms of physical custody, I don’t really think there’s a 50/50 split – I believe that physical custody is more often determined on the basis of which parent is the primary caregiver (which is, still today, generally the mother). I think casheroo was referencing the practical outcome as opposed to a legal presumption.

BarnacleBill's avatar

The ideal is a 50/50 split, unless there is mitigating circumstances—SAHM mom, father makes a lot more money than mother, etc. Marital debt is considered just that. The only thing that’s separate is if you inherit money from family, and you do not co-mingle it with marital assets.

Both parties split all assets, and all debts. The house is considered an asset; so are all retirement accounts, stocks, bonds, etc. that were acquired during the marriage or were placed in joint accounts. If someone moves out, they have to continue their share of expenses until the divorce is finalized. There is a lot of negotiation in divorce settlements.

iamthemob's avatar

@BarnacleBill:

All of that is really only applicable if the legal separation results in divorce, correct? I wonder now about the gray area of time during separation pre-divorce. There has to be some monitoring of “fraudulent” transfers in order to prevent harm to the unwitting spouse.

Cruiser's avatar

Depends on how separate they feel the need to become! I have seen neither want to budge and someone lives in the basement but in most cases someone can’t wait to run out the door and sleep at a friends and eventually get an apartment. Obviously at some point the divorce takes over and the courts decide who gets to keep the keys to the front door!

BarnacleBill's avatar

The way I understand it, if a couple legally separates, their assets and debts are still co-mingled up to the point of separation. The marriage doesn’t end with the legal separation filing, and the documents spell out the finances, custody, etc. responsibilities for both parties during the period of separation. It depends on who’s filing, and why. Usually the person filing, leaves the house unless the house belonged to that person prior to the marriage. Nothing gets sold. If both names are on the deed for the house in joint survivorship, then then house cannot be sold by one party.

With legal separation, divorce doesn’t always happen. It really depends on what’s happened in the marriage. I know several couples where they are legally separated, and the husband continues to support the family and pay all the bills, but he wants to be able to have relationships with other women. In one case, the wife ran up a lot of debt, and legal separation was a way to force her to come to terms with it, without bankrupting the family. In another case, the husband had a substance abuse problem, and the wife filed to force him to clean up his act without her responsible for him.

The legal document is binding with respect to both parties, and financial responsibilities that have been agreed upon have to be met.

skfinkel's avatar

@iamthemob : I wish I was wrong. But I don’t think I am. I have just been checking on this for a book I am working on, and this is the trend. There was something called the “tender years doctrine” that did put the baby and children with the mother for the most part until they were older. That went out the window in the 70’s. Also, since in most states the amount of money the father pays for child care is connected to the amount of time the mother receives (ie.half time with the child means half the money to the mother), most fathers these days are told to ask for as much custody as they can get.

iamthemob's avatar

@skfinkel

I’m fairly certain that you’re stats are correct in terms of how things are trending in terms of the outcome of divorce proceedings regarding child custody…and it seems that you’re talking about physical as opposed to legal custody (e.g., half the time living with the father, half the time living with the mother). Are you also saying that there’s a legal presumption now in favor of a 50/50 time split? If so, is it more of a quiet presumption, because I feel like any custody presumptions would have to be easily overcome considering that final judgment must be based on a “best interests of the child” analysis.

augustlan's avatar

Either a lot can happen, or pretty much nothing. Just filing for separation doesn’t necessarily force one person to leave the marital home. (I’d think in abuse cases, that would be different.)

If it’s amicable, things can move along pretty swiftly. My ex and I hammered out most of our separation agreement ourselves (including custody/visitation and child support stuff) went to a mediator to decide some things we weren’t able to, and only then took our documents to our respective lawyers. It was all settled very quickly, and I moved into an apartment very shortly thereafter.

However, I know of another couple that had to haggle over every damn detail for months upon months, using lawyers the entire time. The husband refused to leave the home until a formal separation agreement was signed, even though he was openly seeing another woman. It was months of misery for the wife in that situation.

mollysmithee's avatar

It depends on the state-but generally there is a separation of joint assets. So, if the house was bought during the marriage it would become part of the combined assets that will be split during the divorce proceedings. Here is an article on the division of property after filing for divorce: http://www.westpalmbeachdivorcelawyer.com/articles/property-division-property-owned-prior-to-the-marriage/
Many things are taken into account, such as the reason for the divorce, etc, but just because one spouse filed does not mean that they are not entitled to their share of the assets.

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