Once you have finally made your mind up to move forward with divorcing your spouse, the next logical step you may be considering is moving out of the marital home. In order to divorce in North Carolina, the parties must be physically separated, living separate and apart, for one year — someone has to leave in order to start the process. Many people become anxious to separate once they’ve resolved to divorce. Of course if there is any kind of abuse going on, you should take action immediately (leave, ask the court for a protective order, contact police) to ensure your safety and the safety of your children. However, if the circumstances are less urgent, there are a few things you should consider before simply packing up and moving out…
- If you have children with your spouse, try to work out a parenting schedule. Especially when you are the one leaving the residence and the children will remain in the home with your spouse, it is important to make sure that a schedule is put in place that serves the best interests of the children and ensures them sufficient time with you going forward. Failure to work out an appropriate parenting schedule could result in a limitation on the children’s time with you which may require court action to rectify. Many times people say to us, “my husband/wife would never keep me from the children.” While it may not always be a situation of intentional withholding, trusting a former spouse to do the right thing is unwise. In addition, the parenting arrangement that takes shape in the weeks and months following a separation can become the new status quo – maintaining stability for children during a divorce is a major consideration for most courts; best interests is key, but anything that disrupts the status quo will be scrutinized.
- If you ultimately want to live in the marital home after divorce, think carefully about being the one to leave. If both parties desire the residence, it can be difficult to reoccupy the the marital residence after you leave. Many factors can influence who gets the house ultimately, including the need of a parent with custody of children to occupy the marital residence, each party’s ability to afford the mortgage and ongoing expenses related to the residence, the ability of a party to refinance a mortgage to unlock accrued equity, and/or the viability of offsetting the value of the marital home with some other marital asset. Furthermore, property division in a divorce can take many months, sometimes years – you may expect living arrangements following separation to be “temporary,” but as time goes on, you may become less willing to wait in home limbo. In addition, if you are not living in the home, you may not be able to make sure that the home is being properly maintained, repaired, etc.
- Are you “abandoning your spouse?” This question comes up frequently during our consultations, and most of the time, it really isn’t applicable. Abandonment isn’t a separate cause of action, nor is it grounds for divorce. Having said that, if you are a supporting spouse or a dependent spouse, it could be a significant consideration related to alimony. In a nutshell, spousal support can be affected by marital fault – abandoning is considered marital fault. “An abandonment occurs when one spouse brings the cohabitation with the other spouse to an end without justification, without the consent of the other spouse and without intent of renewing it.” Corbett v. Corbett, 67 N.C.App. 754, 755, 313 S.E.2d 888, 889 (1984). A determination that you have abandoned your spouse could impact the duration and/or amount of any alimony obligation. While abandonment doesn’t often become a relevant factor, it is nonetheless a very real consideration.
- Can the income that previously supported one household now adequately support two? Many people begin to cohabitate, as roommates or romatically, in order to maximize the savings benefit of one household over two. A recent report stated that 36% of Americans monthly spending about equals their income, and 19% of Americans spend more each month than they earn; in other words, the majority of Americans are struggling to make ends meet as is. Separation requires both parties to take a hard look at their budgets, living arrangements, and lifestyles. Sitting down to work through the numbers will help you to avoid moving out only to find that you can’t afford the situation you’ve created for yourself. You may need to save up a little more, reduce some expenses, or reconsider your employment situation before making any drastic changes.
- Do you have copies of important financial records? Once you leave the marital home, you may not have access to all important financial records; worse yet, some important records may suddenly “disappear.” If you don’t have access to documents either online or by contacting financial institutions directly, make copies before you leave. Make copies of your tax returns, including attachments and schedules, mortgage statements, bank statements, investment statements, records of home improvements, car titles, loan documents, retirement benefits, and insurance policies. This is by no means a comprehensive list; the bottom line is get as much information as you reasonably and legally can while it is accessible to you. While you can likely obtain documentation through legal channels later (assuming the documentation still exists), those methods can increase both time and expenses.
- Do you have the personal property and home furnishings that you want in your possession?Keep in mind that just because you take it with you, doesn’t mean you get to keep it; and, just because you leave it, doesn’t mean you can’t have it. However, it can be difficult to sort out property months after a separation. While monetary adjustments can be made to make sure an estate is divided fairly, some things just aren’t replaceable. Take the items of particular importance with you, assuming you and your spouse aren’t at odds about who is keeping them. Personal items such as clothing, shoes, toiletries, identification/passport, and memorabilia generally aren’t much of an issue. At a minimum, make a list of all property in the marital residence, room by room, and make notes about when the items were acquired. Take photos/videos of all items, especially those of higher value/significance.