The Legal Significance of Separating from Your Spouse
So you've had it with your spouse and can't stand to spend another single minute with them. And you've carefully read my post, "Is Divorce Right for Me?" and did some meaningful reflection.
You're going to go through with the divorce no matter what. Before you decide to move out, however, you need to know that there are significant consequences associated with the date you or your spouse move out of the marital residence, also known as the separation date.
Community Property Consequences
If you or your spouse decide to permanently separate (i.e. one of you moves out of the marital residence for good with no intention of returning), any income, assets, or debts that you acquire after the separation date are completely your separate property. The same goes for your spouse. This is potentially beneficial if you are worried about your spouse making any claims on your income and/or other assets. Your spouse will not be permitted to make any claims on any assets that you acquire after the separation date. A practical example of this is the acquisition of real estate. If you know that separation from your spouse is inevitable, do not purchase any real estate until after you have separated from your spouse or your spouse will have a community property claim on said property.
Child Custody Consequences
Be forewarned: Separating from your spouse as soon as possible is not always a good idea. If you and your spouse have children together, you need to ensure that the kids will live with you at your new residence before you decide to move out (or at least spend the majority of the time with you). This will benefit you later if there is a battle over custody. This is because the court usually respects the "status quo" custody arrangement. Meaning if you separate from your spouse but the kids continue to live with your spouse or otherwise spend most of their time with him/her, that custody arrangement will become the new status quo. And if that is the case, your custody rights will be hurt if your spouse takes you to court to turn the new status quo into an official court order.
When There is Domestic Violence Involved
Obviously, you or your spouse need to move out and a restraining order must be filed IMMEDIATELY if your spouse is putting you and/or the children in physical danger. But did you know that you don't have to be the one that moves out? You can request that the court issue a "kick-out" order, forcing the abusive spouse to vacate the residence immediately. In any scenario, the safety of you and your children should be your #1 concern.
As always, you should always consult with a competent Family Law Attorney when deciding if and when to separate from your spouse.
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