When you are facing the prospect of separating from your spouse, it is never easy. It will always be stressful and wreak havoc on your normal routine, especially if you have children. Here are some practical things to consider when faced with separation and divorce.
First, irrespective of who owns your matrimonial home, if you decide to move out, then you run the risk of potentially losing your right to live in your home. Therefore, if you can afford to remain in the home and/or your spouse will provide some level of financial support, then you will want to remain in the home pending further settlement. This is particularly important if there are children involved and you are the primary caregiver. In general, it is in the children’s best interest to maintain their routine and status quo as much as possible, including keeping them in their home, school or neighborhood. This minimizes the impact of separation.
That being said, you shouldn’t stay in the matrimonial home, even on a temporary basis, if you realistically cannot afford to pay the expenses and maintain it. Ascertaining the amount of child and/or spousal support you will receive can help you make this decision.
Separation when children are young can be challenging. It’s important to understand that both access and custody need to be determined. Access refers to who the children will be living with and when. Custody deals with who will be making the major decisions regarding the children.
Whatever temporary arrangements you make with respect to access, they may create a new status quo that can negatively affect your claim (what you want) down the road. So you must be particularly careful in deciding what the access arrangements will be.
Of course, the children’s best interest, which considers maximum contact with both parents, should be paramount in most cases.
Payment of Bills
More often than not the mortgage, utilities, lines of credit, credit cards etc., are in joint names. On separation, you need to consider who will be paying these. This may be partially dependent on the living arrangements. You also need to be careful when bills are in joint names and your spouse has agreed to pay them. If your spouse defaults on the payment, it can cause utilities to be cut off and could hurt your credit. The bank may also come after you for payment and worst case scenario you could face mortgage foreclosure proceedings.
Joint Lines of Credit/Credit Cards
If there are joint lines of credit or credit cards, you need to consider putting a hold on them or freezing them. If things are amicable with your spouse, you may want to do this in conjunction with your spouse to avoid creating unnecessary tension.
You want to avoid the scenario where one spouse can use and/or withdraw funds and you will be jointly liable for it. While you may get reimbursed in the overall settlement, you may still need to manage and be responsible for the monthly expenses associated with it to ensure the bank/credit card company does not start collection or enforcement proceedings.
Matrimonial Home Designation
If the matrimonial home is not in your name, you should immediately have a matrimonial home designation registered on title. This will caution potential buyers and possibly prevent a sale.
Severing Joint Tenancy
If the matrimonial home is held jointly (through joint tenancy), you may want to consider severing the joint tenancy and having title held as tenants in common. Most spouses hold title as joint tenants. This means that if one spouse dies, the other would get title (100%) and it would not go through your Will. Tenants-in-common means that you each hold 50% of title (although it can be a different percentage), and if one spouse dies, their share will go to their Estate and correspondingly to whomever are the beneficiaries in the Will (which is not necessarily the other spouse). This is important post-separation if you do not want your spouse to get your equity in the home should you pass away. It also means that you should change your Will if you have named your spouse as beneficiary.
You should start to collect documents in support of assets and debts that you held solely or jointly with a third party (including your spouse) as of the date of marriage and the date of separation. This will make things easier later, especially if you or your spouse are no longer in the home and do not have access to documents.
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