Once you realize that your marriage is over, you want the rest of your life to begin as soon as possible. But many women don’t know where to start and what their first steps should be. So, what should you do?
In Virginia, you are legally separated when (1) you form the intent to end the marriage, and (2) you stop cohabitating, or living together as husband and wife. Many spouses choose to live separate under the same roof, but it’s also possible to totally physically separate from early on in the process.
There’s no right or wrong, with the exception that you have to have the intent for the marriage to be over and you have to stop cohabitating. That means you should be living together – if you are living together – as total legal strangers, rather than as partners. If you’re living separately, it’s much easier to show that you’re not cohabitating… because you’re not.
Either way, though, the period of separation is a difficult one and it’s fair that you’re asking questions. What does it look like? Well, a lot of that depends on your unique situation. Let’s break it down a little bit, shall we?
I’m ready to leave. What do I do now?
A lot will depend, in the very early stages, on how amicable your proposed separation is. One of the things that always concerns me is the possibility that the other party will file for divorce using desertion or abandonment, which would put your divorce in fault-based territory. This isn’t ideal for a number of reasons, but mostly because it increases the level of animosity in a case – and potentially means that your case will cost exponentially more.
Ideally, you and your soon-to-be ex husband will agree to separate and to sign a very, very brief statement that you have agreed to separate and not to pursue desertion as a grounds for divorce based on your physical separation. That’s it. I don’t mean that you negotiate a partial agreement or that you include any other terms here – just that you agree that you are separating and that neither of you is planning to pursue a divorce on the grounds of desertion or abandonment.
In a relatively amicable situation, physical separation is probably not a big deal. In fact, it may even improve things. After all, living separately under the same roof is incredibly difficult (and, sometimes, even dangerous). In an amicable situation, it may be possible to get an agreement in place that neither of you views this physical separation as desertion and to begin working on your separation agreement. That’s great news – and a good path to be on.
If, though, your situation is less amicable, things may be more difficult. It’s not necessarily that you wouldn’t want to leave; after all, desertion is, relatively speaking, one of the weaker, if not the weakest, of the fault based grounds for divorce. If you feel that you and your children are, for whatever reason, not safe in the marital home, you may have little alternative than to leave. I would never tell a client of mine that she shouldn’t leave if she felt afraid for her safety.
You may want to talk to a lawyer about the possibility of using constructive desertion as your grounds for divorce, too, especially if you’re concerned he’ll weaponize your sort of forced separation against you.
In a more contentious situation, your separation may up the level of animosity between you. This is something you’ll want to prepare for.
I’m leaving – what should I take with me?
Whether your situation is amicable or not, you’ll still want to be sure you take the most important things with you. Just because you take it, of course, doesn’t mean it’s yours (unless you’re taking property that was already yours separately to begin with). Unless and until you’ve gone through equitable distribution, whether as part of your contested divorce or whether you’ve negotiated a signed separation agreement, there will still be an opportunity to divide the assets, liabilities, and responsibilities from your marriage.
Either way, it’s important not to take too much, because you run the risk of making a situation that might otherwise have been amicable more contentious. Don’t go scorched earth, you know? Ideally, you and he will have talked about this and agreed about what can go and what can stay.
If not, don’t take more than half, especially of the money in the accounts. That’s a surefire way to escalate, rather than deescalate, a situation. You should also be sure that you’re taking documents, especially if you have concerns about what is there to divide. Chances are, once you announce a separation, you’ll have a harder time getting the information you need. Whether we’re talking about tax returns and W2s or bank and mortgage interest statements, the more information you have, the easier your attorney’s job will be later. Make sure that you take what you need, make copies, and save them somewhere that they can’t be found or destroyed.
Can I take the kids?
Until you have a signed custody agreement (that has been entered as an order by the court) or a formal order by the court, either (and both) of you have full rights to custody and visitation with the children.
Either (or both) or you can take the children whenever you want, wherever you want. For this reason, custody at this stage is often a sort of scary thing, especially if it’s contentious, your soon-to-be ex is abusive or otherwise unsafe, or if you know that custody is the thing that’s going to tip the scale.
The answer is easy – yes, of course, as a parent, you can take the kids. But, of course, that doesn’t mean that it’s it, end of story. This act alone may make your case more contentious. It could mean that your soon-to-be ex files for divorce immediately or even tries to pursue custody on an “emergency” basis, saying that you’re taking the kids away from him.
But you also can’t leave them in an unsafe situation, even just to try to avoid the situation becoming nuclear. Not only does that undermine your argument that you really don’t feel safe with him (or, worse, that the kids aren’t safe with him), but it establishes him as the sort of interim status quo for custody and visitation with him as the “default” parent – no matter what he was doing with the kids prior to your separation.
While you should definitely take the kids, especially if you hope to get custody later, that doesn’t mean that it’s necessarily an easy road.
You also probably shouldn’t, all things considered, deny him parenting time if he asks for it – unless, of course, you’re worried that he’s unsafe or that he will take the kids and not return them. As a general practice, you could ask that he sign an agreement saying when he takes the kids and will return them, but – even so – you may find that the police are hesitant to enforce this if push comes to shove. In fact, the police are often very little help at all in domestic situations.
It may be, too, that if the situation is particularly contentious, you have no other option than to file something, whether divorce or custody and visitation petitions.
There aren’t many ‘one-size-fits-all’ solutions, and much will depend on the specific circumstances involved in your case. For more information, schedule an appointment with an attorney to discuss your unique concerns, or consider registering to attend an upcoming divorce seminar for Virginia women on our website at hoflaw.com.