Separating from a spouse can be one of the most painful and pivotal moments in a person’s life. You may be reevaluating your marriage, working diligently on keeping it afloat, or even separating as a condition of a divorce.
Unfortunately, without careful planning, you could risk losing assets, accumulating unexpected debts, and even jeopardizing your parental rights. Whether you are just considering a separation or are already in the process, taking the right legal and financial steps now can shape your future.
How Can You Be Legally and Financially Exposed During a Separation?
Family laws vary from state to state. Some states recognize the legal construct of legal separation, while others don’t.
Legal separation allows couples to live apart while also legally addressing each spouse’s financial, property, and custodial obligations while they’re apart. But separating spouses aren’t offered those protections in states that don’t recognize legal separation. This means that couples can live separately, but they are still legally married with all the responsibilities (and risks) of marriage while they are apart.
What Are the Risks of Separation Without Legal Protection?
Separation is difficult enough, but without legal and financial protections, it can pose serious risks until rights and responsibilities are spelled out in a legally binding agreement or a final divorce decree. Because spouses are still married, whatever they do — or don’t do — can impact the other. This can lead to:
- Financial risks
Separating from a spouse is not only emotional – it’s also financial. Without formal legal protection, your spouse could withdraw funds from your joint accounts, sell shared property, or take valuable assets. In addition, if your spouse stops making payments on joint debts, you may still be responsible for them, potentially damaging your credit. In other words, if you don’t establish financial responsibilities early in the process, you face risks that could leave you financially vulnerable. - Legal risks
Without a formal legal agreement, you have no custody or support protections. Your spouse could decide where your child lives or how your parenting time is divided. Without a formal custody order, your spouse could even relocate with your child without your consent. Furthermore, if you rely on your spouse financially, you may be left without spousal or child support without a formal separation agreement. - Keeping the marital home
One of the biggest conflicts during a separation is often who stays in the marital home. Separation is not just one spouse “moving out.” While you may assume one of you can leave and sort it out later, moving out without a legal agreement can weaken your claim to the house or even impact custody decisions in a subsequent divorce.
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How Can You Protect Yourself During a Separation?
You must consider all these risks and more when you’re going through a separation. Waiting too long to get legal protection can cost your financial stability, property division, and even your parental rights.
Consult a Family Law Attorney
When you consider all the potential risks, you will want to get legal guidance as soon as possible. An experienced family law attorney will:
- Assess your situation and advise you of your legal rights regarding property, custody, and finances
- Prevent your spouse from making unilateral financial or custody decisions
- Help you avoid common pitfalls that could weaken your case later
- Prepare you for what happens next, especially if your separation has become contentious
The earlier you consult with an attorney, the more options you will have to protect yourself during your separation.
Secure Important Documents
Before tensions rise, you will want to collect important legal documents in a secure location. These should include your financial records, tax returns, property deeds or leases, car titles, insurance policies, investment and retirement information, and any outstanding debt information. These documents can serve as evidence if your spouse cuts off financial access, tries to hide assets, or claims certain property as their own. They will also help your attorney negotiate fair financial terms, spousal support, or child support to ensure your financial stability.
Establish a Temporary Separation Agreement
One of the biggest mistakes couples make during a separation is relying on verbal agreements. When emotions are high, even the most amicable separations can turn complicated and unpredictable. What begins as a simple agreement can quickly fall apart when financial strain or custody disputes come into play. Without a legally enforceable separation agreement, you have no real protection if your spouse changes their mind, refuses to follow through, or disputes their verbal agreement altogether.
During your separation, a temporary agreement will establish:
- Your financial responsibilities, such as who pays the mortgage, car payments, utilities, and other shared expenses
- Who stays in the marital home and how joint assets will be divided while you are apart
- Who your children will live with, how you will share parenting time, and how you will share decision-making responsibilities
- Who will pay child or spousal support, how much, and when
Unfortunately, without a court-approved agreement, you have no legal protection if your spouse refuses to pay bills, follow your verbal custody agreement, or changes their mind about anything you’ve agreed to. Additionally, a separation agreement often establishes terms for the final divorce settlement, with judges often looking at what is already in place when making final decisions.
How to Ensure Your Financial Survival During Separation
Disentangling shared assets, debts, and other obligations can be tricky while you are still legally married. This is why it is critical to have legal protections in place.
Protecting Your Assets and Credit
When you and your spouse share finances, one of the first things you will want to do is open an individual bank account and monitor any joint accounts and credit cards closely. Take care not to make large withdrawals from joint accounts as they could signal you may be hiding assets, which could hurt your legal proceedings. Check your credit report periodically for any new debts or suspicious activity.
Understand Your Own Financial Obligations
Many people assume that they will only be responsible for their own expenses when they separate, but that is not always the case. If you have joint debts, such as a mortgage payment, car loan, or credit cards, both of you are still liable for payments. Even if one spouse stops paying, creditors can still come after the other spouse.
Furthermore, don’t assume the court will divide your debt equally. The court looks at many factors when determining how debt is assigned, such as who benefited from the debt, who can afford to pay it, and whether it was incurred irresponsibly. If your spouse has run up large credit card bills during your separation, you will need legal support to prove that those expenses shouldn’t be your responsibility.
Spousal Support and Child Support Considerations
Separation doesn’t mean you are free from your financial obligations toward your children or spouse. Spousal and child support play a big role in each spouse’s financial stability – or instability – during a separation.
- Spousal support
If one spouse is financially dependent on the other, the higher-earning spouse may be required to pay spousal support until the lower-earning spouse can become financially independent. - Child support
Child support is based on both parents’ income and custody arrangements. Even if you agree to informal child support payments, you will have no way of enforcing this if your spouse stops paying.
Having a formal agreement in place sets out support obligations for both spouses and makes it easier to enforce payments.
Who Will Stay in the Marital Home?
One of the biggest decisions in a separation is who will remain in the marital home. While the home is a deeply emotional issue, it can also be a huge financial burden. In a separation, the court may grant temporary possession of the home to one spouse until the final divorce decision. But when making a final decision, they look at several factors, including
- Which spouse can afford the rent or mortgage on their own
- Where the children will have the most stability
- If the home is marital property or if one spouse owned it before the marriage
- If both spouses have contributed to its upkeep
- If there has been a history of domestic violence
Keeping Track of Your Spending and Liabilities
When you separate, financial transparency often disappears. You no longer have access to your spouse’s spending habits, and yet you may still be connected to joint accounts, loans, credit cards, and mortgages. Creditors don’t care if you are separated. If they don’t get paid, they will come after both of you.
Tracking and documenting all your joint financial information can protect you from
- A spouse accumulating or taking on new debt in your name
- Missed payments
- Credit score damage
- Legal battles over debt division
Keep a financial journal that keeps a detailed record of all your own financial transactions during your separation. If your spouse later claims they paid bills they didn’t or tries to shift financial responsibility onto you, your records can be used as evidence in court.
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Protecting Your Parental Rights During Separation
One of the more contentious and emotionally charged aspects of a separation is how you will share custody and parenting time with your spouse. While it may start off with a mutual understanding, it can quickly become complicated. Unfortunately, parents often make mistakes during this time that can hurt a custody case later.
Establishing a Temporary Custody Agreement
Because a verbal custody agreement is not binding, a formal temporary custody agreement will outline
- Where your child will live
- A visitation schedule for the non-custodial parent
- Who will make the primary decisions concerning things like your child’s education and medical care
- How you will share holiday and vacation time
A formal custody agreement also prevents either parent from making unilateral decisions, moving without consent, or refusing visitation to the other parent.
The Best Interests of the Child
It’s important to note that courts favor parents who can demonstrate they provide a stable and structured environment, keeping their child’s routine as consistent as possible.
This can mean living in the same home, attending the same school, and maintaining their regular extracurricular activities. Furthermore, courts want to see that parents encourage their child to have a healthy relationship with their other parent. This shows the court that parents are willing to put their differences aside to do what is in their child’s best interests.
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Choosing the Right Legal Partner to Protect Your Interests
When it comes to navigating a separation, the decisions you make now could significantly shape your financial stability, future well-being, and parental rights. Without legal protection, you could risk losing assets, accumulating unexpected debt, and facing unfortunate custody battles.
At Melone Hatley, P.C., our experienced family law attorneys will develop a personalized strategy to protect you throughout the separation process. We understand the deeply personal nature of this time and provide compassionate guidance and powerful legal support to ensure your best possible outcome. Call us today at 800-479-8124 or contact us through our website to schedule a confidential consultation with one of our Client Services Coordinators.
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