Something I have been seeing more and more in my practice as a mediator and collaborative attorney are couples living apart for long periods of time, without being legally separated.
For various reasons, many married couples decide to separate for years without having any legal agreements in place. They don't realize until years later when one of them is seeking a divorce that the legal, financial and emotional issues caused by the years of separation can become very difficult to resolve.
Below are just some of the pitfalls that people encounter when they separate unofficially:
- When two spouses start living separately, the clock starts ticking on a new status-quo. Eventually, the lifestyle maintained by the lower-earning spouse during the separation can become the standard for the amount of spousal support that is required in the future.
- Non-legal separations do not necessarily end the legal financial union between spouses. That means all the money earned - or debts being incurred - by either spouse may still be considered part of the shared marital estate.
- The higher earning spouse is not necessarily going to get credit under the law for the amount of support they've been providing.
- Once a couple moves into separate residences, communication between them can break down even more than it was while they were living together, which makes negotiating a separation agreement even harder than it has to be.
- If either spouse starts a new relationship and spends money on the new partner, it can be considered a "waste of marital assets," which can result in complicated requests for repayment (financially as well as emotionally).
Often times, clients will be dealing with many of these consequences all at once. For example, a client of mine was supporting her husband for 10 years after she moved out. He was still hurt by the fact that she left him and, because she felt guilty, she still gave him access to her credit cards and she was still depositing her paychecks into a joint account. They hardly spoke and had each moved on to new relationships but the hurt and guilt was still there.
I had to tell her that her husband had every right to expect that the comfortable lifestyle she had provided for those years would continue. It was difficult for her to accept this fact, but she eventually agreed to give her husband some significant real estate holdings she had acquired during their separation in order to reach an agreement with which he was comfortable. This was despite the fact that she had already paid a small fortune to support him and they had lived the majority of their married life apart.
As we were getting ready to sign the settlement agreement, she explained the reason for her generosity:
"I know I gave him more than I needed to, but I was ready to finally move on with my life and I decided it was better to give my money to him instead of our lawyers."
Why unnecessarily give money to anyone? If you are ready and willing to deal with the legal, emotional and financial issues of your separation, before you actually decide to move out, you will be better-protected in the long term. Let a mediator or collaborative attorney help you negotiate a written agreement where the needs of both you and your spouse will be considered. It will not only help to bring emotional closure to your relationship, but will protect both of you from potential legal and financial entanglements in the future.