Q: My husband recently asked to separate but, given our finances, he wanted us to continue to live in the same house. I spoke with my parents who are willing to help me financially. My husband does not want to leave our house, and I am willing to move out and share custody of our teenagers, but I am concerned about this being considered “abandonment”. Would this be considered abandonment and/or affect custody or the division of property? Also, because my husband also wants to separate but does not want to leave our home (which we rent), would I be liable for half of the rent payment until the lease is up? Thanks for any help.

  1. You cannot legally separate while living under the same roof. You must live separate and apart for 1 year.

  2. I do not think this is considered abandonment, however I would get a separation agreement drafted up that would outline exactly who is responsible for what bills/payments and the remedy should either default. It can also detail items such as custody schedule, asset division, etc.


Abandonment could arguably be considered an equitable distribution factors that the court consides when dividing property pursuant to an equitable distribution claim. If you abandon your spouse, and he/she is unable to pay for and upkeep the marital estate, depleting the value, it could be argued that your abandonment caused waste. Since you have discussed his desire to separate and remain in the house, you should be able to use these facts to rebut his argument of abandonment if he makes one, but you may want to consider executing a non-abandonment agreement or completing a full separation agreement and property settlement in conjunction with you moving. If you are interested in assistance with either of these, you should consider use of Rosen Online where we assist with answering your more detailed questions and providing more specialized forms for a monthly subscription fee.