You’re Separating—So What Now?


Posted on October 24th, 2012, by Matthew Smith in Divorce, Family Law. Comments Off

A while back I wrote a blog piece about establishing a date of separation in your divorce process, and why it’s so important once you have made the decision to move on. Let’s take things a step further. Now that you are in the process of separating, what do you need to know to protect your interests and prepare for the road ahead?

First of all, assess the character and personality of your spouse. How will he or she react to the separation? Is there a chance of spiteful financial retribution? Is there a fear of negligent financial mismanagement? You’ll want to look at how many joint financial accounts (checking, savings, money market, etc.) and joint credit cards are currently open, and consider separating those assets and debts to limit your liability. Many people have fallen victim to a post-separation “race to the bank” to liquidate marital accounts. If you have reason to believe that such a raid is coming, you may want to move half of those liquid financial resources into a separate account of your choosing. This is usually preferable to seizing all of an account, and certainly more defensible if your divorce case ends up before a judge. You may also want to remove your name from any joint credit cards, if possible, and establish separate accounts for yourself instead. This will prevent unapproved “joint” charges that would be expensive and time-consuming to defend yourself against later on.

Perhaps you’ll want to make sure that your paycheck is deposited into a new, post-separation account solely in your name. Anything earned after the date of separation will be considered separate property in Virginia, so you may want to begin saving for yourself. These monies should not be mixed with funds earned during the marriage, as this can cause complications down the road.

You may also struggle with whether to move out or stay put in the martial home while your divorce is pending. If you have children, the way you address this issue will likely have implications for years to come.

If custody and visitation are at issue, oftentimes the party who stays in the house with the children has a distinct advantage. For one thing, the party who leaves usually can’t immediately afford to move into a similar home in a similar environment. There may not be as much room for the children in your new home, or the neighborhood may be different, or you may be living outside of their school district. If you leave without bringing the children, you are creating a new “status quo” for your spouse to possibly exploit. If your custody dispute proceeds to court, he or she can argue at trial that the children need to maintain the familiarity of their home, neighborhood and school, and the friends and routines that are important to maintaining stability for them during an unstable time. Of course, the success of this argument will vary on a case-by-case basis. But if your spouse lives with school-age children in a three-bedroom house in a subdivision with a big yard and a neighborhood full of similarly-aged kids, and you have moved into a one-bedroom townhouse ten miles away in an urban environment and a different school district, it won’t be difficult for a judge to see the advantages to maintaining the status quo. Your chances at primary or equal custodial time will have been diminished.

These are only a few of the issues you should consider when beginning down the road to separation and divorce. There are many others, and considerations and outcomes are always fact-specific. The divorce lawyers at Livesay & Myers, P.C. take the time to get to you know you—your unique circumstances, concerns and motivations—before creating a plan to leave you well-positioned for the future. Contact us to schedule a consultation today.

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About 

Matthew Smith is a senior family lawyer in the Fairfax office of Livesay & Myers. He is the attorney in the firm most experienced in navigating the Fairfax County, Arlington and Alexandria family courts. An attorney since 2005, Mr. Smith has litigated every type of family law case in the courts of Northern Virginia, including high value equitable distribution cases, custody, support, and military divorce cases.



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