Chapter 4

Initial Issues Associated with Separation

It is not unusual for a person to realize that he or she is going to get divorced, but has no idea how it’s going to work. Who moves out and who stays? What if there is no agreement on how to handle the divorce? What if there is not even an agreement to get divorced? This chapter answers many of those common initial questions.

4.1 My Spouse Left Home Weeks Ago. I Don’t Want a Divorce Because I Feel Our Marriage Can Be Saved. Should I Still See an Attorney?

It’s a good idea to see an attorney. Whether you want a divorce or not, your spouse may initiate divorce, so there may be important actions for you to take now to protect your assets, credit, home, children, and future right to support.

4.2 My Husband and I Are Going to Divorce, but He Won’t Move Out. What Do I Do?

This is often an issue for divorcing couples. Absent violence, neither party is required to move out based upon the other’s request. The best option may be to separate in the same house while obtaining legal advice about your situation and your options. Though the judge has the authority to award the house to one party or the other once a divorce case is filed, in most cases the issue of who moves out is handled by the parties without a court ruling.

4.3 I am Thinking About Moving Out. Should I Talk to a Lawyer First?

Yes, you should definitely talk to a lawyer before you move from the marital home. There may be consequences of which you are unaware. It is especially important that you obtain legal advice if you want to obtain the house as part of the divorce, if spousal support is an issue, or if custody and visitation are in dispute.

4.4 If Either My Spouse or I File for Divorce, Will I Be Ordered Out of My Home? Who Decides Who Gets to Live in the House While We Go Through the Divorce?

If you and your spouse cannot reach an agreement regarding which of you will leave the residence during the divorce, the judge will decide whether one of you should be granted exclusive possession of the home until the case is concluded. Some judges have been known to refuse to order either party out of the house until the divorce is concluded.

Abusive behavior is one basis for seeking temporary possession of the home. If there are minor children, the custodial parent will ordinarily be awarded temporary possession of the residence.

Other factors the judge may consider include:

• Whether one of you owned the home prior to the marriage
• After provisions are made for payment of temporary support, who can afford to remain in the home or obtain other housing
• Who is most likely to be awarded the home in the divorce
• Options available to each of you for other temporary housing, including other homes or family members who live in the area
• Special needs that would make a move unduly burdensome, such as a health condition
• Self-employment from home, which could not be readily moved, such as a child-care business. If staying in the home is important to you, talk to your attorney about your reasons so that a strong case can be made for you at the temporary hearing.

4.5 My Wife Gave Me a Document That Indicates That We Are Separating by Mutual Consent. Should I Sign It?

You should obtain legal advice from a divorce lawyer before you sign any document associated with your divorce to make sure you understand the consequences. For example, you may not want to sign a document that indicates you are separating by mutual consent if your wife is asking for the divorce, and if she is seeking spousal support against you.

4.6 My Husband and I Are Going to Divorce. I Can’t Afford to Move Out, but He Scares Me With His Aggressive Behavior. What Should I Do?

This can be a difficult situation. If your spouse is violent with you, or if he tries to limit, block, or control your movements, you should consider calling 911. (Only do so if absolutely necessary if your children are present, as it is traumatic for children to witness a parent being arrested.) In other situations, obtain legal advice to identify your options, and to discuss the pros and cons of each option.

4.7 I am Planning to Move Out With the Children. My Parents, Who Live in Baltimore, Have Invited Me to Move in With Them. Can I Move the Children to Maryland?

Absent a court order governing custody and visitation, either party has the legal right to move with the children, but it is rarely a good idea to move (other than locally) with the children without agreement of the other parent or permission of the judge. The other spouse has the option of filing a request with the court that you be ordered to return the children immediately, and these requests are often granted. If you want to move the children some distance from the other parent, it is better to communicate your plans to the other parent in advance. If you cannot agree, then the issue can be determined by a judge.

4.8 Things Have Gotten So Bad at Home That I Want to Go Stay With a Friend for a Few Days. Would That Be Considered Desertion?

No, staying with a friend for a few days does not constitute desertion of your spouse or family. It is better to avoid staying with a friend of the opposite sex, especially if you have a romantic or sexual interest in the friend. (This sounds obvious, but you would be surprised.)

4.9 All of My Money Is in a Joint Account With My Spouse, and I’m Worried She Is Going to Empty the Account. Should I Take the Money First?

That is a tough decision. It is best if both parties behave in a predictable, mature, and thoughtful manner. But you would be frustrated if you took the high road and she emptied the account. One option to consider is having a freeze placed on the account so that funds can be withdrawn only if you both agree in writing. Another option is to move one half of the funds into an account in your name.

4.10 My Marriage Is Over, and I’m Interested in a Coworker Who Is Recently Separated. There’s No Harm in Us Having Lunch Together, Is There?

You should talk to a divorce lawyer before you start dating. As a general rule, you should postpone dating until your divorce is resolved. You should recognize that it is better to settle your divorce issues, and a settlement is often made more difficult by the emotions associated with the involvement of a new boyfriend or girlfriend. If you have children, realize that the relationship between them and a future significant other is made more difficult if your significant other enters the scene during rather than after the divorce.

4.11 My Spouse Is a Spender, and I’m a Saver. We Are in the Process of Separating. What Should I Do to Protect Myself?

You should consider a freeze of your joint accounts, or a transfer of one half of the funds to avoid your spouse improperly spending marital assets. You should also consider closing joint credit cards or other lines of credit. Some credit card companies will only close a joint credit card upon the request of both parties. In that case, send a letter to the company and advise it that you do not agree to be liable for any future charges. Keep a file copy of your letter.

4.12 My Wife Moved in With Her Parents and I am Stuck Paying All of the Bills. Doesn’t She Have to Pay Her Share?

Try to agree upon a fair division of the marital bills and other financial arrangements pending the divorce. If you cannot agree, the judge has the authority to allocate the bills between you. That would require the filing of a divorce action, and the scheduling of a court hearing.

4.13 My Wife Moved Out With the Children and Won’t Let Me See My Children. What Can I Do?

Hire an attorney and have your attorney contact your spouse or her attorney. Your spouse needs to realize that it is not in the children’s best interests to not be allowed to see you. In addition, her interference with your relationship with the children can be held against her by the judge. If there is a guardian ad litem , seek his or her involvement in the process. If no guardian ad litem has been appointed, consider having your attorney request one. Finally, if the other options don’t work, schedule a custody and visitation hearing.

4.14 Should I Hire a Private Detective to Prove My Spouse Is Having an Affair?

That depends upon the specific facts of your case. Adultery can be important if spousal support is an issue. It may also make sense for you to incur this expense if there is a significant amount of money at stake in the divorce. If spousal support is not an issue, and if you and your spouse have a modest net worth, it may not be worth the cost. Discuss this question with your attorney.

4.15 My Spouse and I Share a Home Computer on Which I Send and Receive E-mail. Should I Have Any Concerns About This?

Yes, it is very important that any communications you have with your attorney involving your divorce are secure and beyond your spouse’s access. There are many tools available (most of which are illegal) for your spouse to access your communications on a shared computer. As a general rule, you should avoid any confidential communications on any device that your spouse can physically access. In addition, you should change all of your passwords and use a combination of letters, numbers, and symbols.

4.16 I Have an Active Facebook Page. Should I Have Any Concerns About This?

Yes, you should limit or suspend your Facebook activities during the divorce. Information posted on Facebook, by you or others, could be used by the other party to gain information to use against you during the divorce.

4.17 If Our Case Ends up Going to Court, What Will the Judge Learn About My Communications With My Spouse?

Everything you say or write can be repeated or shown to the judge if you end up in court. It is common for parties to say or write things, especially early in the process before they hire attorneys, that are later used against them. Strive to always be polite and cooperative in your communications with your spouse, for two reasons. First, if you both use that approach, your divorce will be more civil, less stressful, and less expensive. Second, such an approach will help your image with the judge if your case ends up going to court.

4.18 I am Concerned That My Spouse Seems to Know What I am Doing and Where I am Going. What Can I Do?

Technology now allows a person to be tracked in multiple ways (many of which are illegal). Be aware that there are small GPS devices that can be placed on your automobile and used by the other party to track your car’s movements. Talk to your attorney about your concerns. You may want to have your car examined by your mechanic for such devices. Smartphones can be accessed remotely to track movements of the phone, to access e-mails and texts, and even to listen to conversations. You should have your own cell phone plan, and consider a new phone.

4.19 Who Is Responsible for Paying Credit Card Bills and Making House Payments During the Divorce Proceedings?

This issue is usually resolved by agreement between spouses based upon who is liable on the account, who has been paying the bill, who is in the house, and other factors. If you can’t agree, then this issue can be determined by the judge at a pendente lite hearing (a hearing early in the process to resolve temporary issues pending the resolution of the divorce case). Realize that the creditor is not bound by agreements between you and your spouse (for example, if you are liable on a credit card and your spouse agrees to pay but doesn’t pay, the company can still pursue you to collect).

4.20 What, if Anything, Should I Be Doing With the Credit Card Companies as We Go Through the Divorce?

You should consider closing credit card accounts for which you are responsible and to which your spouse has access. If the company will not close the account without your spouse’s consent, send the company a letter (and keep a copy) advising it that you do not agree to be responsible for any future charges.