Pre-Divorce Planning: Part 1 – Should I Leave or Should I Stay?

Pre-divorce planning means any actions taken by a husband or wife who is thinking about separation and divorce. For whatever reason the marriage is not working. One spouse is thinking about leaving the marriage and the other will be left. The first part of this post talks about the actions a dependent or a supporting spouse should take before leaving his or her marriage.

1.  Consider whether you want a permanent separation. Do you love your spouse in the romantic sense? Are you basically happy despite the day-in, day-out sameness that married life can sometimes be? Do you think there is a problem and if so, is there a chance that with some help the problem is fixable? If you answered “yes” to any of these questions and have any uncertainty about whether a separation is the right thing to do, asking for a separation or leaving is probably not the best course of action now.

2. If your intention is to leave the marriage, the act of leaving can have legal consequences which vary from state to state. Leaving a spouse without his or her consent is abandonment in some states. In addition, if you are in a sexual relationship with someone else, adultery can have legal consequences. For instance, in North Carolina, adultery by a  supporting spouse will entitle the dependent spouse to alimony and adultery by a dependent spouse will bar the dependent spouse from alimony. Because of the potential legal consequences of the reasons you want to leave the marriage, at a minimum, consult with a divorce lawyer. This is information gathering – you may not need to hire a lawyer at this point. During the consultation you be completely candid about the circumstances which are causing you to consider leaving the marriage. Do not hide information – such as adultery  – from the lawyer as his or her advice will likely be incorrect if all the facts are not on the table.

3. As a general rule, until you develop a strategic plan to deal with the consequences of leaving the marriage, do not tell your spouse that you are thinking about separation. If you do, the first thing your spouse is likely to do is contact and maybe hire a lawyer who may slap you with a lawsuit, tie up your bank accounts and take you to court. If you believe that your spouse will be receptive to discussing a separation and not overreact, then pre-separation discussions are an alternative.

4. Make a plan to deal with money and property. If you are a supporting spouse and intend to leave a dependent spouse and maybe children, you should plan to continue to provide for the support of your spouse and children. Failure to communicate a plan for voluntary support to the spouse who is being left will cause panic if the spouse has no independent resources. This is asking your spouse to file a lawsuit against you.  Maintaining financial calm provides a better environment for potentially settling the divorce issues. If you are a dependent spouse and plan to leave, with or without children, evaluate your financial position considering your income and expenses as well as your asset position. Leaving an angry and upset supporting spouse will not endear you to him or her and, if you are not financially independent, obtaining financial support will be difficult. The situation is even more difficult if you are not employed. If not,  you will almost certainly need help from parents or other relatives until your spouse will agree to an amount of support, support is court ordered or you receive an interim distribution of property which is convertible to cash.

5. Find a place to live before you leave the marital residence where you can live the next six months to a year. Decide what furniture and furnishings you will take with you. Be reasonable. If you are leaving a dependent spouse with children behind, they will need stability and for the household furnishings to stay mostly intact. If you are the dependent spouse take what you need and don’t strip the house. Move out when your spouse is away on a trip or will not return to the house for several hours. This will avoid a confrontation.

6. If there are joint bank accounts, and you are a dependent spouse you should consider withdrawing at least half or more of the account balances and transferring to a separate account. Be aware of the potential for outstanding checks which have not cleared the bank. Do not overdraw the accounts. Plan on enough cash for three to six months, if possible, plus the cost of hiring a lawyer.  If you are a supporting spouse, and have cash in bank accounts, you should transfer enough cash to your spouse for living expenses for three to six months and to hire a lawyer. Again, the purpose is to reduce hostilities, maintain financial stability and enhance resolution of the issues without litigation.

7. If there are children, a dependent spouse who is moving out with children should clearly communicate that the children will be available to the other spouse and a plan worked out for temporary visitation. The children are not the centerpiece of a tug-of-war. If  you are a supporting spouse, you should clearly communicate your intention to continue to support the children and to spend time with them on a consistent basis.


About ncdivorcelawyer

Divorce and Family Law Lawyer in Raleigh, North Carolina. Carole is Fellow in the American Academy of Matrimonial Lawyers, listed in Best Lawyers in America and in Super Lawyers as one of the Top 50 Women Lawyers in North Carolina. Carole is a Board Certified Specialist in Family Law.
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3 Responses to Pre-Divorce Planning: Part 1 – Should I Leave or Should I Stay?

  1. WOW just what I was looking for. Came here by searching for first for lawyers

  2. Nandish Sood says:

    Hey! This is my first comment here so I just wanted to give a
    quick shout out and say I truly enjoy reading your posts.

    Can you recommend any other blogs/websites/forums that go over the same topics?
    Thank you!

  3. Howdy! This blog post could not be written much better! Reading through this article reminds me of my previous
    roommate! He continually kept preaching about this.
    I’ll forward this post to him. Pretty sure he’ll have a great read.

    Thanks for sharing!

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