What if he kicks me out?

The early days of a divorce or separation are the worst. It’s when both fears and tempers are at their worst, which causes lots of otherwise perfectly rational people to make decisions that they wouldn’t ordinarily. Under normal circumstances, idle threats wouldn’t cause a World War III level fight; in the beginning of a divorce or separation case, though, all bets are off.
Many of the women I met with, at least initially, are panicked. They’re filled with anxiety and worried about the future. They half want to reconcile, and half hate his guts. It’s normal.
I know, I know. When you’re in the midst of a crisis, you don’t want someone to smile kindly at you and tell you that it’s normal. You want them to be outraged on your behalf, to want to do something about it, to tell you that you deserve better. And there is very little doubt that you DO deserve better. Maybe you’ll reconcile; maybe you won’t.

Whatever you decide, you should go into this knowing that the first days are the worst.
It does get better.
That’s not to say, though, that some really terrible things don’t happen in the early days. They do. And sometimes they’re unexpected, while at other times women tell me that they just know he’d do something as slimy and low as this. Either way, the more you know, both about what might happen and about what you can do about it, the better.
My goal here is just to educate you. Talk to you a little bit about the process, the things that can happen, and what you can do about them if they happen to you. In an ideal world, you’re reading this BEFORE they happen, so that you can plan ahead a little bit and avoid the worst of it. If you’re reading this as it’s happening, that’s fine, too. The more you know, the better you can react, and the more quickly you can bounce back on your feet.
Take a deep breath. It’s going to be okay.

Separation Under the Same Roof

When a couple first separates, a couple things typically happen. Sometimes, they make a decision to live separate and apart in the same house—at least for now. They decide that it’s too expensive to maintain two separate households, or just that it would be too upsetting for the kids to be immediately uprooted. They decide, for the benefit of all involved, to just stay under one roof.
Is this allowed? Generally, yes. The law only says that, as grounds for a no fault divorce, you have to be separated for a period of one year without interruption or cohabitation (a fancy legal word that just means ‘living together as husband and wife’). (If you don’t have minor children AND you have a signed agreement, you can get divorced after just six months.) The law does NOT say that you have to occupy physically separate spaces. Some judges insist on it, but, these days, I suspect that those judges are few and far between. I’ve never had a divorce that wasn’t granted because husband and wife had lived separate under the same roof.
If you’re planning on living separate under the same roof, you should keep the following criteria in mind (and remember that the judge may ask you at the end!). You should
• Establish and maintain your intent to separate permanently
• Sleep in separate bedrooms (and all that implies)
• Take off your wedding rings
• Shop for and prepare your own meals
• Not eat your spouse’s food, or use other purchases made by him
• Eat meals separately
• Clean up after yourself; don’t clean up after him
• Do your own laundry
• Establish separate checking accounts
• Not socialize together (including at church)
• Interact as parents where necessary
• Not give gifts or celebrate anniversaries
• Make sure friends, family, and acquaintances know you’re separated
Of course, it’s not always easy! Living separate and apart is do-able, but you should be aware that it’s not necessarily ideal, particularly when tensions are running high.
Remember, too, that if you DO decide to move out, it doesn’t impact your ownership in the home. If you do leave, make sure you take the kids with you when you go.

What if we’re not living in the same house… What if he kicked me out?

Living separately in the same house isn’t for everyone. Sometimes, things go down a little differently.
I’ve heard of this happening a number of different ways, but the bottom line is that, sometimes, husbands kick their wives out of the marital home. Can they do that? No! Legally, it’s her home, too—even if it’s only his name on the mortgage, deed, or lease. It doesn’t matter whether you rent or own, your spouse can’t just kick you out of the marital residence.
Of course, that doesn’t mean that, sometimes, for whatever reason, it’s not better to just go ahead and leave. Sure, it may be expensive, and maybe it wasn’t exactly what you had planned, but, generally speaking, if your welfare (or the welfare of your children) is in jeopardy, it’s better to go than stay.

Is it desertion if I leave? (Or has he deserted if he leaves?)

Technically, yes. If you leave the marital home, it could be considered desertion. Usually, to avoid providing the other side with ammunition, we ask that our clients try to get an agreement signed, saying that one spouse leaving is the result of mutual agreement and, as a result, does not constitute desertion. That’s not always possible, and, most of the time, that’s fine, too.
Desertion is probably the weakest of the fault based grounds. Even though it might be possible for your spouse to use it against you, it doesn’t usually happen. Though he may allege it in his complaint (the document that formally opens up the case with the court), proving it is another matter. And, beyond that, proving to the judge (even IF he can prove that it was desertion) that your desertion warrants a disproportionate award of the assets is even more difficult. Frankly, I think it’s pretty unlikely that, just because you’ve moved, your husband would be able to (1) prove it, and (2) successfully argue that he deserves more of the assets than you. If you’re worried, though, it might be a good idea to schedule a consultation with an attorney to talk about your unique case.
So, although technically you’re probably in desertion territory, I think desertion is rarely something to be truly concerned about.

If I leave, am I giving up my interest in the house?

No! Absolutely not. You should know, before you make any decisions, that ownership is different than possession. Just because you move out (or he moves out) doesn’t mean that you’re giving anything up. Don’t stay just because you don’t want him to get the house; that’s not how it works.
The same principle applies to everything in the house. Your furniture and other personal belongings (at least, the ones that were marital property anyway) are still marital property. If you take them all when you move or leave them all behind, you still have a marital interest in them, and they’ll be divided later.
Technically, until there’s some kind of order or something in place that specifically explains what is supposed to happen to each individual thing, there’s no reason that either of you can’t just take whatever you want. After all, it belongs to you. It belongs to either of you, equally. And since it belongs to you, you can do whatever you want with it—at least until the separation agreement kicks in, or a judge makes an order detailing how things will be divided.
That being said, though, I definitely don’t recommend setting fire to things or selling them away at a garage sale, just to avoid giving him his share. In almost every situation I’ve seen like that, the judge has made the guilty party pay for the things they sold or destroyed. It doesn’t help your credibility, and you’ll have to pay for it later. In fact, if you really think about it, you’re probably paying twice as much—because you either sold or destroyed it (at a loss to you), and then you have to reimburse him for his half of the interest (which is probably more than what you got if you sold it and certainly more than if you destroyed it). It’s not worth it.
If he has taken things that you wanted and you’re upset about it, just hold tight. It’ll all get sorted out, but it may take a little bit of time.

Will I still have to pay the mortgage if I go?

That all depends. Every area handles this issue a differently. I know that normally in Virginia Beach, for example, whether you stay or go, you’re equally responsible for the mortgage. In Hampton, on the other hand, the party who stays in the house is generally responsible for the mortgage. Of course, this is what you could expect to happen if you went to court and sat in front of a judge, but if you reached an agreement you and your husband could agree to handle it in whatever way you wanted.
You should talk to an attorney in your jurisdiction to find out how it’s handled near you.

Cutting Off Access to Marital Funds

Another ugly thing we see happen, especially in the early stages of divorce, is the husband cutting the wife off from any financial support. In many families, (though this is less and less often the case) the husband is the primary breadwinner. Usually, the wife has cut back her career for the sake of promoting her husband’s professional advancement, and has spent her time focusing on the family and managing the household instead. When a husband and a wife make the decision to separate, usually other things are quickly separated as well—including the family money. Husband’s usually fairly quickly have their paychecks direct deposited into another account, leaving their wives without financial support.
For a wife that’s not working at all, this can be a calamity. For a wife who is, but who just earns less than her husband, it’s pretty life-altering, especially as your expenses escalate. If you’re planning on moving out, or just supporting the existing household on your own, and certainly if you’re planning on hiring an attorney, things can get real desperate real fast.
Again, the same principle applies. He can do it, as long as there’s no order requiring him to pay you a certain amount in support. It’s his money, and the law views anything earned post-separation as separate. (That doesn’t mean, of course, that he can get away with not providing support, provided that the circumstances warrant and award of support.)
Bank accounts are a different story. Whatever was in the account as of the date of separation is marital. Even though you both have equal rights to access the money (since it’s in an account with your names on it), he can’t liquidate the account entirely without having to reimburse you for your half of what was in there as of the date of separation. (Likewise, if you liquidate the account, you’ll have to make up for his half later on.)
So, what should you do?
Ideally, you should plan ahead. Hope for the best but plan for the worst, as the old saying goes. Whether or not you think your husband would do something like this, if you’ve got time before you plan to have the separation discussion, it’s a good idea to set some money aside now. Obviously, you don’t want to set aside money he can track; if you take it from the bank account and put it in a separate account, he’ll be on you like white on rice.
The best I can tell you is to try to go to a cash based system. When you go to Target or the grocery store, get cash back—just enough that it’ll make a difference, and that he’s unlikely to notice. Store it in a safe place, and build up a little nest egg.
If you haven’t planned ahead, it can be a little harder. I’m not a magician, and I can’t wave a magic wand and make money appear where it didn’t exist before. I can, however, help you file for divorce (if he cut off funding from you, we can use financial abandonment as our fault based grounds) and get in the system quickly. From that point, we can schedule a pendente lite hearing (it’s Latin for ‘while the litigation is pending’) and ask the judge to award temporary spousal support. Of course, you’ll have to come up with the money to hire an attorney and wait the month or so it’ll take to get on the docket, but it’s the best option I have at my disposal.
As you can tell, with a little bit of planning, we can turn lemons into lemonade. It isn’t always easy, but you shouldn’t assume that just because he’s being sneaky that you just have to take it. The bad guys gain a little ground in the beginning, but we can get it back from him—we just have to follow the procedure, and things will work out. You’re not doomed, and you don’t have to just take it.
If you’re in a tricky spot, or scared that you may be put in a tough place soon, give our office a call at (757) 425-5200. Whether you’d like to attend one of our divorce seminars , request a copy of our free divorce book, or schedule a consultation with one of our attorneys, we can certainly help you.