Home and finances during the initiation of divorce proceedings
by Carole Orland
Should you have a formal separation agreement?
You would typically not have a comprehensive separation agreement during the pendency of the divorce. However, you very likely might enter in to a Stipulation or several during that time. These Stipulations may address a variety of issues both child-related and financial. For example, you and your spouse may agree to have a Guardian Ad Litem or Attorney for the Minor Children appointed. You may agree to psychological evaluations of the parties. On the financial side, you may agree on alimony, child support and/or contribution to household expenses while the divorce is pending. It is certainly the best practice to reduce these agreements to written Stipulations and have them approved by the Court, thereby making them an official Order. That way, if the terms are violated, you would have an action for contempt or enforcement.
Additionally, the Court requires the parties to file a written Parenting Plan prior to the Case Management Date, which is usually within several weeks of the initial filing. This may be adopted by the Court at the time of the final divorce hearing or it may be amended at that time to reflect a change of circumstances or the parties’ wishes.
If ultimately the case is settled, the parties will enter into a comprehensive Separation Agreement, which will include the Parenting Plan and all financial pertinent provisions, such as alimony, child support, division of assets, health insurance, life insurance and education funding.
Who gets to stay in the marital home? What are the consequences, if any, of moving out? Can you force someone to leave the home?
Very often during the pendency of the divorce, both parties remain in the marital home, sometimes in different rooms or floors. Either party is free to move out but it is common for both to want to hold their ground. Sometimes it’s a matter of wanting to stay close to the kids, and sometimes it’s because neither party wants to give up ground to the other. And at other times, the finances will not allow a second home during the pendency of the divorce. If you think you ultimately want to retain the house after the divorce, you would not want to move out but staying in the home while the divorce is pending doesn’t automatically give you a right to retain the house after the divorce. It depends on finances and what is affordable when you are divorced. Often the parties will agree to sell the home but during the pendency of the divorce, that can only be done by agreement of the parties. The Court cannot force a sale until the final divorce. It is difficult to get your spouse removed from the marital home during the pendency of the divorce unless there he or she has physically abused you and/or the children or has created a severely toxic environment. As a practical matter, Courts are loath to remove a party from the marital home short of these extreme circumstances. Living in the house together during the divorce can be extremely difficult for the entire family, which is a good reason to move through the divorce as quickly as possible.
Who pays the bills during this time?
Ideally the parties continue with business as usual when it comes to paying the bills while the divorce is pending. That means they continue to deposit any pay checks into accounts that are used for household bills and they don’t incur unusual liabilities in the meantime. If the bills are not being paid and the parties are still living together, often we file a Motion for contribution to household expenses. If the parties are living apart, we sometimes need to file a Motion for Alimony and/or Child Support pendente lite, meaning during the pendency of your case.
Access to bank accounts
Each party should have access to joint bank accounts and to his or her own bank accounts. If for any reason that is not happening, we file a Motion for access. The Automatic Orders by which the parties are bound during the pendency of the case are intended to prohibit unusual expenditures and diversion of funds. If a party violates the Automatic Orders, we file a Motion for Contempt.
What happens with regard to liabilities incurred after you separate?
All liabilities that exist at the time of the divorce are considered marital liabilities, no matter which party incurs them. However, the Court will typically look at who incurred what liability after the filing and what the funds were used for. If the liability was incurred for a truly personal nature, the Court may assign that liability to that person at the time of the divorce. Again, the Automatic Orders are in place to prevent either party from incurring any unusual liabilities.
Increasing your spending with the aim of raising your claim for alimony
I don’t recommend that and if you do it, you do so at your own peril for a Court will look back at your historical spending and expenses in determining alimony. You Financial Affidavit should reflect an accurate picture of your legitimate expenses and the Court will consider that in awarding alimony. A more typical question is, “Will I get penalized for reducing my expenses during the pendency of the divorce?” It is counsel’s job to point out to the Court what the actual needs are and to alert the Court that his or her client tightened up during the divorce to reflect the temporary circumstances, but that the actual expenses going forward are going to be higher, thus requiring a greater amount of alimony and support.