Considering Separation

My husband and I have been married going on 14 years this November and reside in NC. I have just recently had to take 5 months off from work because of work and home related emotional stress. Because I was gone from work for 5 months…my insurance would not pay me for anxiety. So therefore I had more relationship issues to deal with at home because of finances and the blame is all on me.

So I went back to work and am now considering moving out into an apartment to initiate a separation because my husband has already stated he has no intentions of moving out of the home. (fyi…we both work at the same establishment and he makes slightly more money than me).

I even suggested (to help out with finances) for us to downgrade the home, move out into an apartment…but he is unbending. He even said at one point if I move out, that he will sell the house and move back to AL with his family and take the kids with him as I was the one needing the break and I was the one who wanted to move out.

I have a couple questions:

1.) I found an apartment in SC, but only 30 miles away from our home…can he state that this was “abandonment” even though it’s a short distance away and I am willing to work out visitation (kids, 10 and 14) and create a separation agreement. I will still be working at my place of employment…which is at a Sheriff’s Office in NC. Also, can he make me pay for his attorney fees and the mortgage even though he makes more? I definitely won’t be able to pay rent and mortgage because of debt and any household obligations we are behind on because of my medical leave.

2.) It’s no excuse, but because of the emotional distress, I went into a relationship in 2004 that led to an extra-marital affair and ended within that same year. He is fully aware of this but since then has forgiven me and nothing like that has happened since. Can alimony still be restricted because of this—even though this happened in the past? He makes about $600 more than myself.

3.) We both have incurred debt and besides the house, the only assets we both have are the 401k’s. He wants me to take mine out and pay for anything that was left behind during the 5 months I was out for anxiety…but this then leaves me with nothing to fall back on while going through this transition and he is unwilling to help because he blames me. In the long run, instead of taking this amount out, can both of our savings be divided amongst both of us in the agreement?

If you leave the home your husband can claim abandonment, but the claim has little actual effect. The biggest danger in moving out is that you will lose access to the home, which can make seeing the kids difficult. I suggest you have a parenting agreement put in place before you move.

Your husband is not entitled to seek attorney’s fees from you.

Your previous affair will not be a factor in this case as it was forgiven by your husband years ago. In any event I do not see this case being an appropriate one for alimony as the income disparity is so low.

Your savings should be divided equally, and the bills incurred while you were out of work are marital in nature, and not your separate responsibility.

Thank you!

Should I also have a separation agreement created before actually moving out (along with the parenting agreement)? And can you provide a link in regards to how much it is to get these documents drawn up by your firm?

Also–if the late bills are both our responsibility and I was not able to be responsible at the time, do I still owe that money? Does the savings you mention include 401K’s also or just savings accounts in a bank? Also, what I take out at this point say to cover expenses (moving, etc) or whatever I might want to cover, would that be held against me?

Ideally folks will come to an agreement regarding all issues and execute a Separation Agreement prior to physically separating, however that it that is not always possible.
Splitting up the bills is part of the negotiation process. 401(k) accounts and savings account are indeed subject to division if accumulated during the marriage. You may withdraw up to half of all liquid martial assets prior to leaving.
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