By Jennifer M. Paine
If you’re thinking about a temporary separation to see if your marriage is reconcilable, then you’ve probably read our articles about the risks.
On the one hand, a temporary separation allows you and your wife some space to think about what you each truly want out of your marriage.
On the other hand, a temporary separation can easily transform into a new, and bad, status quo, one in which you have doubled your living expenses and have removed yourself from your children, if you have them, and/or have set a pattern of supporting your soon-to-be-ex.
While they may be helpful for the short run, every day must bring the two of you closer together or further apart – otherwise, the risks of confusing your children, establishing a support pattern, and setting expectations that you will be the secondary or “visiting” parent take over.
Here are three less obvious, but just as common risks you should consider about a temporary separation:
1. Accumulating Assets
While you are separated, you should assume that any asset you and/or your spouse acquire, except some gifts and entirely segregated inheritances, are marital property to be divided equally between the two of you.
This means the furniture you bought to outfit your new place, your new TV, your contributions to your 401k, your interests in your pension, etc., are eligible for division even after a lengthy separation, in most states.
This rule is not intuitive because most spouses will expect that their property rights were defined at the time they separated since their decision to divorce is in their minds really an extension of their decision to separate.
However, in most states, the rule is property is to be divided if it came to be between the date of the marriage and the date of the divorce, NOT the date of separation.
While some states allow judges to fix the date at an earlier date, such as the date of separation or some date in between when it became clear the couple would not reconcile, this is but an exception to the rule.
What’s worse, if you stop contributions toward your retirement to get around this rule, most states will treat your actions as “in anticipation of divorce” and will divide your retirement as if you had made those contributions.
The best approach, therefore, is to make the separation short and decide soon whether to reconcile or file for divorce.
2. Unanticipated Debts
Similarly, in most states, the debts either you or your spouse acquire are still considered marital debts to be divided between the two of you as of the date of divorce, and again, not as of the date of separation.
This may be intuitive for debts like the credit card the two of you have been using for gas, a medical expense for your child, or the home mortgage, but what about anticipated debts like a home repair while your spouse has resided in the home or credit card spending your spouse claims is “all for the family” but you cannot track?
Yes, in most states these too would be marital debt. While some states allow judges to fix the date to divide debts as of some other date and to identify some debts as “purely personal,” this too is the exception and not the rule.
You should assume that any debts your spouse acquires while you are separated from her are one-half yours.
3. Tax Filing Status
Unfortunately, these unanticipated consequences can, and often do, carry over to tax season. There is no rule that spouses must file their federal tax return with the status “married, filing jointly,” which is usually the most preferred tax filing status.
Rather, either spouse may file with the status “married, filing separately” and take advantage of his or her own deductions, exemptions, and refunds.
If you and your spouse are not on speaking terms, you may not discover this separate filing until you file your return – long after she has claimed what she can for the home, and the children, and long after she has spent her refund.
Tips To Properly Handle A Temporary Separation
Then what are you to do if you and your spouse still intend to separate temporarily?
First, establish a firm deadline for the separation – a month, two months, etc. – at which time you will either reconcile or one of you will file for divorce. The longer your separation goes the greater these risks grow.
Second, consider a separation agreement. In some states, judges will enforce these as contracts. Even if your state doesn’t view them as contracts, either way you and your spouse have set forth your expectations.
Most of all, exercise caution every day of your separation. Assume your assets during that time are one-half your spouse’s, her debts are one-half yours, and taxes will be an issue.
Decide relatively soon to file for divorce if every day you are not growing closer together as a couple.
Cordell & Cordell:
Jennifer M. Paine is a Michigan Divorce Lawyer with Cordell & Cordell. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims.
Ms. Paine received her Bachelor of Arts in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.