Do you have to separate before your divorce?

Many of the questions that you may be wondering about as you approach a divorce to have to do with the case itself. The process, the laws, the court, and what a judge will be like. All of these are worthwhile questions to ask yourself and are natural to be curious about. If you have never been through a divorce, it could be something that you have had concerns with as far as what your life is going to look like after the divorce comes to an end and what you can do to help improve your chances of success in a divorce.

Even being able to define “success” can seem to be a challenge. After all, a divorce is a weird place to start thinking about success or winning. However, there are certainly times when you can feel like you are accomplishing something in a divorce. Despite the process being difficult and emotionally taxing it is a situation where you can focus on certain objectives that you can earn results that benefit you and your family in the future. Nobody would choose to go through a divorce at the beginning of their marriage but if this is the hand that you have been dealt it is incumbent upon you to manage the case as well as you can. Asking questions is a logical place to begin that journey. 

When going through marriage problems, or problems of any kind with another person, it is normal to want to separate yourself from that person. When our kids run into an issue on the playground or with a sibling the common piece of advice to provide to them is to simply walk away. Rather than repeatedly must deal with the problem and waiting for the other person to escalate the situation we will tell a child to walk about, take a deep breath and do something else. Ignore the person. Choosing to separate yourself from your spouse is basically what you are trying to do. Allow yourself to think through your options and focus on what you can do to either improve the marriage, fix your problems, or end the marriage via divorce

This is a tricky position to be in as a spouse. On the one hand, you may want to save the marriage and not have to go through a divorce. The case itself can be stressful and difficult while costing you money in the process. On the other hand, separation can lead to a situation where you and your spouse do not work together any longer and lose further touch. If you thought it was hard to communicate with your spouse while he or she was living in the same home as you are, what do you expect will happen once you all live separately? There are certainly good reasons to move out of the home that you share with your spouse. You just need to think through the ramifications of what you are trying to do to figure out if it is the best step to take at that time. 

In today’s blog post from the Law Office of Bryan Fagan, we are going to talk about how you can manage this stage of your divorce. The period immediately before you need to start committing to a divorce. This is when you can take your life in one direction or another. What should you know and what should you be thinking about during this time? That is what we will be discussing in today’s blog post. If you have any questions about the material that we will be sharing, please do not hesitate to contact the Law Office of Bryan Fagan. We can speak to you and arrange for a free-of-charge consultation with one of our licensed family law attorneys where you can ask questions and receive feedback about your circumstances. 

When to separate, if at all

As we have already mentioned in today’s blog post, one of the major issues that you may come to face in your marriage is whether a divorce is necessary. On top of that, you may need to know whether you should move out of the home or ask your spouse to do that if you are headed toward a divorce. In short, there is no one size fits all type answer. You all will need to determine how best to structure your lives in the period before and during the divorce. It is a given that you two won’t be living together after the divorce but before and during the divorce there may be some doubts about which way you all should head. Here are some thoughts for you to chew on if this is the situation that you find yourself in currently. 

First, do you want to get a divorce? This is the most basic question that you can ask yourself throughout this entire process. If the answer to that question is yes, then you have some planning to do. If the answer is no or even “maybe” then you should consider what steps, you can take to help avoid the divorce. You should talk to your spouse, if possible, about your relationship and gauge whether or not you can move your marriage toward a reconciliation point and away from a divorce. Your spouse may not even realize that this is what you are thinking about now. If the two of you have not spoken in a long time about serious subjects like this then he or she may not be aware that you are thinking about a divorce, or vice versa.

If you do determine that you all are both going to commit to try and save your marriage, then you should take steps to do so. Any momentum that you have developed from having this conversation together should be utilized to see what kind of marital counseling, therapy, or other services you can avail yourselves of. It is not enough to just say that you want to save the marriage but do nothing about it. Doing nothing about it has gotten you to exactly where you are now- which is not a good place. Rather, take the time to plan out concrete steps for improving the quality of your marriage. You and your spouse are going to go to counseling with this therapist, for a certain period with these certain goals in mind. You are going to make time for each other each day of the week to do whatever it is you two enjoy doing together. It will be specific items that will be important to both of you. Whatever matters to you two in your relationship should be what you focus on.

However, if you find that you are not amenable to reconciliation then moving toward divorce is the direction that you need to put yourselves in. It may surprise you to learn that there are people who stay married to one another yet live separately for many years. I have encountered people who live separately from one another for decades and never get divorced. Not only does this type of living arrangement not allow for either of you to move forward with your lives but it puts you in a position where you need to concern yourself with the behavior of your spouse. Since Texas is a community property state it could be that your spouse is wasting community property income on bad investments or even taking out debt in your name. By filing for divorce, you protect yourself from future incidents of harm and position yourself well to move on with your life once the divorce is over. 

Deciding about the need to get a divorce can take some time and is challenging. However, it is a necessary first step towards filing for a divorce and eventually deciding when to move out of the house. Depending upon your situation then this may be a straightforward decision or one that takes quite a bit of thinking to determine which direction to move in. Do not jump to a certain conclusion about how to proceed when it comes to moving out of the house. What worked out for a friend may not make sense for you. Rather, you should consider your options and the needs of your family before deciding to do anything. 

If you and your spouse have no children at home, then this becomes a more straightforward question to ask. Renting a home together makes it more straightforward, even. You can leave the house but if you are on the lease for the home, you are still responsible for payments even if you are no longer living there. So, once you move out then it would make sense for you to check in on your spouse to make sure that he or she is paying rent on time. The failure to do so, even during a divorce, can impact your credit and whether you will be able to find a new place to rent now and after your divorce is finalized. In that situation, your most significant concern may have to do with the finances associated with moving out. 

You would also need to make sure that you have a place lined up for you to stay if you do move out. Do you have a family member, friend, or another person who would allow you to stay with them until you can find a more stable place? Even if you have the money to rent a new place that can take some time to organize a move and get to your new home. In the meantime, having someone available to help you manage this transition period can be incredibly important. Do not underestimate this person’s ability to serve as a support system for you during the divorce itself. It is nice to have someone to rely upon during a time like this.

If you own the home that you may be moving out of then you should consider the mortgage payment and staying current on the loan while the divorce is ongoing. The mortgage company does not care if you are going through a divorce. They expect that you will be able to pay your mortgage on time and in full each month regardless of the other circumstances ongoing in your life. If you are not able to pay the mortgage without the assistance of your spouse helping, then you should consider other plans. You were possibly issued a mortgage based on the dual income of you and your spouse. Whichever of you moves out may also decide to stop contributing to the income used to pay the mortgage. This could spell disaster. 

One thing that I will note for you at this time is that the mortgage company will not care if you are divorced. If your loan has your name on it then that means that they will expect you to pay the note. If you and your spouse are not paying the mortgage that will impact your credit among other things. A deed of trust to secure assumption and a special warranty deed are the main ways that the law can help protect both of you once the divorce is over when it comes to paying the mortgage. For the time being, you may decide to stay in the house until your spouse and you can decide what to do with it as far as selling the home or having one of you remain in the home as the owner.

If you have children that adds another factor to the discussion that we have not addressed so far in today’s blog post. Many parents want to be able to stay in the family house during and after a divorce to allow for the children to have a greater sense of stability and consistency. These parents will see their actions as being justified because of the degree to which their children’s lives are being turned upside down by the divorce. By choosing to stay in the family home you can help ease your child into the divorce and eventually transition out of the case as easy as possible.

However, one part of this discussion that needs to be mentioned now is that you should consider your ability to pay the mortgage after the divorce on your own before you make any decisions during the case about whether to remain inside of the home. It does not make sense for you to remain living in a home that you cannot afford. This is true even if your main motivation to stay at the home is related to the stability of your children. Putting yourself in a position where all your income is used to pay a mortgage or rent does not leave you much wiggle room in your budget for other things after a divorce. This is especially true if you consider that your budget may have already been pushed to its limit given the costs of a divorce.

Leaving the family home early in the divorce or even before the divorce begins can theoretically show a family court judge that you do not want to go back into the house with your children. Leaving the home and your children can be seen as sidestepping your responsibilities. So, if you are goal is to return home to be the full-time parent of your children then your best bet is to remain in the house and to leave only if the situation becomes dangerous or you are ordered to do so by the family court judge.

If your spouse is being violent or abusive towards you and your children, then you should leave the home no matter what. There is no justification for your remaining on as a victim only to be able to keep ownership of the home after the divorce. Rather, you can take this time to protect yourself and your children while planning the next steps in your life. There are shelters and other places for you to stay temporarily so that you do not have to be within proximity of your spouse during a vulnerable time in your life.

The bottom line is that there is no requirement for you or your spouse to move out of the house before, during, or even after the divorce. It is up to the circumstances of you and your spouse to decide whether to stay in the home or to leave and find another place to live. Safety, the lives of your children in your ability to afford rent on a new home or apartment are all relevant factors to consider when trying to decide whether to separate from your spouse.

Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan

If you have any questions about the material contained in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as how your family’s circumstances may be impacted by the filing of a divorce or child custody case.

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