When it’s time for divorce, even though one party begins to consider it before the other, both spouses would much prefer not to be under the same roof together. Accordingly, if you really cannot stand it any longer (and especially if your personal safety in endangered by staying), leave. But make no mistake, there can be significant downsides to separating. I’ll get to those in a moment, but I first want to talk about what many clients have said to me while they were still in the same home. This is what I sometimes hear: “If I leave, he/she says he/she will ‘get me’ for desertion!” The folks who say this to me have not considered what that means or can mean, so I ask them what they think their spouses can do to them if they leave. I then hear dead silence… because they then realize that “getting them for desertion” is really just a dumb threat that sounds much, much worse than it actually is. If by making that threat it is meant that the spouse will file for divorce, then, hey! Guess what! Just go right ahead. Of course, they will not do it. That would mean spending money and a divorce based upon “desertion” does not mean that the party filing such a divorce is going to end up with a bigger piece of the pie than they would in any other kind of divorce.
Moreover, “desertion” is grounds for an expensive fault divorce and only after the deserting party has been gone for over a year does desertion even become a ground for divorce. And, after a year of separation, a much less expensive and simpler no-fault divorce could be filed, one without the otherwise required 90 day waiting period.
I hope that I have demonstrated how meaningless the “I’m gonna get you for desertion” threat really is. Let’s talk about the more meaningful aspects of walking out, either before the divorce is filed or afterward (but before it is over, of course). First of all, it creates two households (assuming one of you doesn’t end up residing with friends or relatives who will take up your economic slack) and that can really make things financially tight. Not much fun. On the up side, once you’re apart, you life and the things you accumulate with your own money are both your own. Yes, legally, you may date. Just remember that anything you do that upsets your spouse may come back to bite you because your divorce will likely take longer and cost much more if your spouse is angry. Which brings up a possible benefit of staying in the home. If you want the divorce more than your spouse and you leave, you are “out of your spouse’s hair” and have just made your spouse’s personal life a little – or maybe a lot – more tolerable. But, if you stay and your spouse would rather you not be there, your spouse may well become more amenable to getting everything settled and the divorce finished just so you will be permanently out of your spouse’s life. Yes, that can be a “who blinks first” situation, but you should consider it.
Also, if you are the main source of income and you move out, you should anticipate your spouse filing for spousal support. That will really make it clear that it would have been far cheaper to stay.
Lots of things to consider before you move out and everyone’s situation is different. Call me before you make your next move. You could regret not getting advice from an experienced lawyer first. It’s free, 1-800-486-4070.