Divorce can be a time of unpleasant conversations, turmoil, and arguments. If you are daydreaming about packing a bag and leaving this mess behind for a few weeks, you are not alone. In fact, many couples choose to separate before divorce. For those who have the financial means to do it, this might mean that one of the spouses moves out of the family home to live elsewhere.
There are definite benefits to the moving-out decision. Separate living arrangements can give each spouse a haven to reflect and regroup – without having to navigate the landmines of daily fights and old arguments. There can also be financial advantages to this course of action. For example, the extra time may help you cross the threshold into the 10-year requirement to qualify for your Social Security benefits on your spouse’s record. Or perhaps this is an opportunity to remain covered under your spouse’s employer-sponsored health insurance plan while you consider your next steps.
However, living in separate households can also create financial complications, especially if this arrangement goes on for an extended time. Here is what you need to know.
Separation vs. Divorce, Texas-style
An important starting point is that Texas law does not allow for legal separation (i.e. spouses living legally separate lives without getting a divorce). In other words, you are either legally married or legally divorced – no middle ground permitted.
As an alternative to an immediate divorce or an informal separation, couples can consider a contractual separation agreement (a legal contract that defines each party’s conduct prior to a divorce). Keep in mind that even though contractual separation agreements are allowed in Texas, they aren’t enforceable as court orders. In other words, if your spouse fails to live up to his or her side of the agreement, you would have to sue him or her for breach of contract – a course of action that could be lengthy and expensive.
If you are considering separation (whether informal or contractually defined), you must understand the trade-offs that are involved in putting your divorce process on hold. Here are five points to consider.
Loss of control over marital assets
Separate living arrangements mean that you release some control over marital assets. Your lack of oversight can create an opening for your spouse to squander assets, dispose of property, and mismanage investments. Your spouse may also destroy important documents, which will make it more challenging to prove ownership or reconstruct financial transactions at a later date.
Possibility of additional joint debt
Because Texas is a community property state, debt accumulated by either spouse during marriage is a shared responsibility, although there are some exceptions. An extended separation can make it easier for your spouse to run up credit card bills without your knowledge.
Opportunity to hide assets
Extended separation can provide opportunity for your spouse to hide valuable assets that would otherwise have to be split during the divorce settlement. That might include transferring assets to friends or relatives, taking cash out of the family business, or hiding documentation to make assets difficult to trace. In this case, time can prove to be your enemy. Of course this can be done while you are living together, but separation may make this behavior a bit easier.
Circumstances can change
Life can change in an instant, to say nothing of six months or even a year. During this time apart, your spouse might change jobs, lose a job altogether, move to another state (residency requirements can be quite low for certain states), or even leave the country making the eventual divorce proceedings an international legal nightmare.
Changes in your living standard
It’s not unusual for spouses to lower their standard of living upon separation. While this may be a wise move in long run (a tighter handle on expenses can help you manage your decreased cash flow), it can also make it tough to argue that you should get spousal support at the pre-troubled marital levels. This is particularly true if separate living arrangements persist for a year or more. Note: Legal guidelines for spousal support in Texas are complex. This is not a DIY project.
Bottom line: take some time, but not too much
If you are dreading the divorce process, you are not alone. Take the time you need to be certain that the divorce decision is right for you. However, remember that lengthy delays can compromise your future financial stability. Don’t allow your informal separation to stretch into months without decision or action. Weigh your options carefully, and always consult with an attorney and also with an experienced financial planner to make sure that your choices don’t create damaging after-shocks.
