Custody and visitation when you live separate in the same house

Custody and visitation when you live separate in the same home

After you’ve decided to separate, but before you reach an agreement about how all the assets and liabilities should be divided (or, alternatively, before a judge has a chance to hear the case and render a verdict), there’s a fair bit of gray.

What happens with everything – but, probably, most specifically, what happens with respect to custody and visitation – is up in the air.

It’s not a really good place to be. Uncertainty never is, after all. But uncertainty where your kids are concerned is even worse. It’s also often a challenge when you’re trying – as so many people do – to live separate and apart under the same roof before your agreement is reached.

Can you live separate and apart under the same roof?

In most cases, yes. In fact, I’ve never seen it actually be a problem in the cases that I have handled myself. Most courts recognize separation under the same roof. It’s really necessary in a lot of cases, especially before child and spousal support are determined and the parties have the financial means to separate. Immediately getting completely separate physical living spaces is sort of a luxury that not all couples can afford right away, especially not without some sort of assurances from the divorce agreement.

That being said, though, you’ll have to live and act as though you’re physically separated. As a benchmark, I usually advise that women behave the way they would if they lived in completely separate physical spaces. We’re talking both about how you behave inside of the home and outside of the home, too.

Inside the home, you should be sleeping in separate bedrooms. You should be cooking and cleaning up after each other. You shouldn’t be sharing meals together. You should grocery shop for yourselves.

If you’ve living in the same home with your children, there are some ways that these things can overlap. When I talk about what you should do, it’s sort of a pie in the sky look at separation under the same roof. In most cases, not a lot of questions get asked about how you behaved while you were separated. Some courts, though, will require a hearing, even in the case of an uncontested divorce, where the judge will ask you some questions about how you lived during that time. (They could also ask similar questions of your corroborating witness, the person you designate who has personal knowledge that you and your husband have been separated for the statutory period.)

I mean, in an ideal world, you’d do all of those things separately, and there’d be no overlap. But I don’t think that means that if you sit down to dinner so that your kids see you as a united front, or if he scarfs some of your leftover spaghetti out of the fridge, that it’s the death knell for your separated status. I think it’s a good idea to keep these things in mind, and make a good faith effort to be as separate as possible. But I do also recognize that some random overlap will happen, and I haven’t actually seen that be a problem. Still, the fact that the judge COULD ask you some questions about it is something you should be prepared for.

You should be watching the way you behave outside the home, too. This is actually often a challenge, too. It’s easy to want to put on a happy face in public so that you don’t have to answer awkward questions or talk to anybody about your marital status. Hey, it’s hard enough for YOU to deal with all the changes, right? Well, although I can certainly understand, you should be representing yourself as part of a separated couple. That means that you shouldn’t be attending church or other events together, you shouldn’t be celebrating anniversaries or dinners out together, and you should take off your wedding rings. Talking to friends and family members is probably a good idea at this stage, too.

But what about custody and visitation?

If divorce is hard, it’s automatically even harder when children factor into the equation. It’s actually especially difficult if you’re living separate and apart under the same roof.

Why? Well, some courts won’t even help pendente lite if you’re living separate under the same roof. Some will, but it’s kind of specific to the circuit court involved here.

What’s pendente lite?

Well, pendente lite is Latin for “while the litigation is pending” and it’s often the first opportunity to get into court for a contested divorce case. It’s where several big issues are determined on a temporary basis – that is, until a more permanent agreement can be reached or a final order is entered by the court. One of those things is custody and visitation – at least, in some courts. But, you add in the extra complication that you’re living under the same roof, and you may or may not have an issue that the court can help you with.

From the court’s perspective, if you’ve living separate under the same roof, you may not really actually need help. After all, you share the responsibilities. You’re both living there! It’s not like you need to necessarily do week on/week off, or have his and hers weekends – I mean, what’s the other parent supposed to do? Stay in their room and not interact with the kids when it’s not their parenting time?

But what some judges don’t realize is that there can still be pretty significant challenges that these parents face, even if they are living separately under the same roof. Still, if your court won’t help you pendente lite, then really all you can do is try to negotiate an agreement regarding custody and visitation.

Negotiating partial agreements

If the court won’t help – and you’ll probably want to talk to an experienced local family law attorney to find out whether you can get judicial intervention in your case if you’re recently separated but still living under the same roof – then all you can do is try to reach an agreement.

If you can’t resolve everything now, that’s fine! Lots of times, we negotiate partial agreements that reflect just the portion of the divorce that’s most immediately problematic – like custody and visitation – and then later we revisit some of the other issues.

We can always come back later and negotiate the other stuff, but often for parents its most important to get the issues pertaining to the children resolved quickly so that everything starts to run more smoothly. Divorce is often a disruption, at first, but if you resolve some of those hot button issues, things can settle down a bit and allow you to focus on the other issues.

For more information, or to talk to one of our attorneys about your specific case, give our office a call at 757-425-5200.

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