Whether you are considering a trial separation or you are planning to live separately from your spouse while you go through the divorce process, it is important to make sure you have a clear understanding of all of the ways your separation will – and won’t – impact the divorce process. While this overview is not exhaustive, it should help you to begin thinking about the types of issues that can come up during a separation.
Of course, married couples separate all the time, and there are no inherent legal reasons not to separate. All of the issues discussed below can be overcome, whether through a postnuptial agreement or otherwise; and, just like a divorce, protecting yourself during a separation involves making informed decisions with your long-term best interests in mind.
Legal Considerations for Spouses Contemplating a Separation
If you are considering separating from your spouse, here are some important legal considerations to take into account:
1. Joint Liability for Debts
As long as you are legally married, any debts your spouse incurs will generally be joint debts. This includes spending on existing credit cards as well as new debts such as car loans and lines of credit – even if your spouse incurs them in his or her own name. If your spouse does not pay, the creditor will likely be entitled to seek payment from your joint assets; and, in the event that you proceed to a divorce, your spouse’s separately-incurred debt may be subject to division.
2. Equitable Distribution of Newly-Acquired Property
The same general principles apply to any property you acquire during your separation. Under Ohio’s law of equitable distribution, all assets acquired by either spouse during the marriage (with only limited exceptions for things like gifts and inheritances) are subject to division during their divorce. This includes assets you purchase independently during a separation.
3. Evasive Action by Your Spouse
While you may be committed to seeing out your separation in good faith, your spouse may have other ideas. Or, even if you are both on the same page now, it is very possible that feelings could change over time.
Hiding assets, moving out of state, and interfering with your relationship with your children are just a few examples of the types of conduct that can lead to stressful and challenging issues during a separation. While these actions may have negative ramifications for your spouse as well, if you are forced to deal with them, they could lead to additional costs and headaches during your divorce.
4. Growing Apart
If you and your spouse are currently on speaking terms, separating could cause you to grow apart. The longer you are separated, the easier it may become for your spouse to take a less-amicable approach to your divorce. While it makes sense for some spouses to separate in an attempt to reconcile, if your separation drives you even further apart, this could make it more difficult to reconcile your differences regarding property distribution, financial support, and child custody.
5. Changes in Tax and Divorce Laws
Changes in the law can drastically impact the outcome of your divorce. For example, under the Tax Cuts and Jobs Act, the tax treatment for alimony payments will be reversed for divorces finalized after 2018. If you are preparing for your divorce based on the law as it exists today, going through a separation could have the unintended consequence of allowing unfavorable law changes to come into play.
Questions about Your Separation or Divorce? Contact Us for a Free Consultation
If you live in the Cleveland area and you are contemplating a separation or divorce, we encourage you to contact us for a free, no-obligation consultation. To discuss your options with one of our experienced family law attorneys, call us at (440) 336-8687 or request a confidential consultation online today.