Are you separated – and headed towards divorce – or just separated and ultimately hoping to reconcile? Sometimes it’s clear. Other times, though, it’s anything but. In any case, whatever you’re hoping for in the long term, you probably have a lot of questions about what to expect and what you should be doing. That’s smart! After all, it’s much easier to move forward, whether you divorce or reconcile, if you know what you need to know to make the best possible decisions for yourself (and your family) from the beginning.
We all act emotionally sometimes. You’re human. It’s okay! If you’ve said things in the heat of the moment that you wish you hadn’t, you’re just like everyone else. Still, it’s important to be able to separate the way you’re feeling from the decisions you want and need to make.
Let’s talk some more about it.
Can we live separately under the same roof?
Yes – you can live separately under the same roof. In the state of Virginia, you have to be legally separated for one year before you can finalize your divorce, or six months, if (1) you do not have any minor children born or adopted by the parties during the marriage, AND (2) you have a signed separation agreement.
Whether you live under the same roof or in separate physical spaces, you should be living as though you are strangers, or simply roommates, rather than former partners. You should be cooking and cleaning up after yourselves and sleeping in separate rooms. It matters how you behave outside of the home as well; you shouldn’t be wearing wedding rings, attending events together, and generally playing the happy couple in public.
Many people do choose to live separately under the same roof, if only because – financially – it’s the only decision that makes sense for them at the time. Keep in mind that, in the early stages of a separation, no property division has been achieved. Merely having possession of something, whether we’re talking about the house or a bank account or an item of furniture, does not mean its going to be yours. We’ll still have to do the division and, unless and until that happens, you may not be able to actually afford a separate place. From the court’s perspective, as far as your divorce is concerned (if it comes to that at all), having lived separately under the same roof is generally not a problem.
What if he – or I – go somewhere else, whether permanently or just for the short term? Is that allowed? How far can I (or he) go?
You can separate physically – and many couples do. It’s difficult to live separately under the same roof. In some ways, it’s much easier if you’re actually able to separate and strike out on your own.
If you have children, you will be much more restricted. Chances are good that you won’t be able to relocate too far away – and what constitutes ‘too far’ is about as clear as mud – but, in a general sense, your child’s other parent should still be able to exercise some parenting time. If you’re in Hampton Roads, you probably won’t be able to go live with your mom in San Diego. (And the risk, if you do, is that your child’s father will file an emergency petition for custody.)
If, though, you live in Newport News but you want to buy a house or move in with family in York County, that makes a lot of sense. In our area, the difficulty of moving is sometimes exacerbated by the difficulty that the tunnels and bridges create. Your soon-to-be ex-husband may throw a fit if you move, for example, from Newport News to Norfolk or Virginia Beach. Though, in terms of miles, it’s not that far, the traffic associated with the bridge tunnel might make visitation untenable.
Things may be a little easier for him, especially if custody isn’t his first objective. If he wants to move further away, that’s probably fine – after all, it’s his parenting time that he’s likely to reduce by making a big move. If he wants to go stay with his mom in San Diego, that could be convenient, especially if you’re hoping for primary physical custody.
If he demands things, do I have to give them to him?
No, of course not! This is one of the most common questions that I get because, once couples separate, even more practical disagreements will come up.
He may want all sorts of things, but that doesn’t mean that you have to immediately acquiesce, or that you have to do on his terms. If he left and now he wants parenting time on Monday, Thursday, and every single weekend, you can counter. You don’t have to just say yes to his exact demand on his preferred schedule, especially if – because of YOUR schedule – what he’s asking for is difficult or impossible for you to accommodate.
I’m not suggesting you withhold access to the kids; that can backfire in a big way. But I am saying that, though you should allow him to see the kids, you don’t have to say yes to every thing or accept whatever treatment of you that he insists on.
This is the hardest time in a separation and/or divorce case because there are so few guidelines to abide by. Getting a separation or custody agreement in place, if you want the breakup to be permanent, is going to be a big priority, but unless and until that happens, you both technically have custody and a right to have access to the kids.
You can always offer alternatives, though. Keep in mind, too, that what you do now establishes a status quo and could bolster his argument for more parenting time. Probably, it would be unwise to give him every single weekend, if you’re hoping to maintain some weekend time for yourself after all is said and done. You could suggest every other weekend. You could suggest that pick up and drop offs take place at school or daycare. You could suggest that visitation take place in a different location.
At this point, everything is a negotiation. You don’t have to do it just the way he suggests, especially if it doesn’t work for you and your child’s schedules.
What can I take with me?
It’s always a good idea to take originals or copies of important documents, whether we’re talking about birth certificates, social security, and insurance cards, or credit card statements, mortgage interest statements, and bank account information.
You shouldn’t take more than half of everything else, whether we’re talking about the money in the bank accounts or the furniture in the home. Remember: possession does not equal ownership, so just *taking* it doesn’t mean that it’s yours. You could, for example, liquidate an entire bank account, but – if you do – it’s also possible that in equitable distribution, you could have to pay a portion back to your soon-to-be ex (or risk it being taken from you from somewhere else).
Keep in mind, too, that it’s not just about what you are allowed to take; it’s about how to take what you need without creating a WWIII situation. Amplifying tensions, especially in the early stages, can have very real consequences for your divorce – making it take longer, cost more, and yield poorer results. If you have specific questions, always talk to an attorney.
What if the situation is no longer safe?
Separation is a seriously dangerous time. Even for partners who have not formerly been abusive, the stress involved with separation can push them over the edge.
If, for whatever reason, you find yourself in a position where you don’t feel safe, it’s important to take action. You can go to your magistrate’s office to get a temporary protective order. If things aren’t resolved, you can also go to court and pursue a permanent protective order.
Additionally, if you wanted to file for divorce, you might also consider the possibility of a pendente lite hearing, where you could ask for exclusive possession of the home. Judges generally don’t like to kick a (paying!) person out of their home, but – if there’s an issue involving domestic violence – it’s a little bit easier.
Make sure that you are documenting where you can so that you have a paper trail and evidence that you will likely need, if you decide to go either the protective order or pendente lite route.
It’s always worth talking to an attorney and getting initial questions answered, especially if you’re considering making any big decisions. Feel free to also visit our website at hoflaw.com, where you can request one of our four free books, read from our wide selection of blogs and articles, or even register to attend an upcoming divorce (or child custody) seminar.