Divorce from bed and board question

My wife and I have decided to separate after roughly a year of problems. For the past year we have been living in separate bedrooms in our house that we both own and we have a 4 year old son that lives with us. We negotiated terms of our separation agreement and she agreed to move out once that was finalized. There were no issues or disagreements about anything in the separation agreement and it is stated that she would move out and we would split custody and time with our son evenly. Everything seemed amicable.

We were in the process of finalizing our separation agreement and had everything in order to file it properly with the court when I received a letter out of the blue from an attorney she retained stating that she wanted me to move out of the house immediately or she would sue me for divorce from bed and board on the grounds of adultery. I was blindsided by this and I believe she is only pursuing this course of action because she found out it would be difficult financially to live on her own. We both make roughly the same amount of money. I have tried to negotiate with her because this obviously changes our separation agreement but she refuses to talk to me. She says she will not discuss or finalize our separation agreement until I move out.

We started preparing our separation agreement 3 months ago and split our finances 50/50 and got separate bank accounts. During those 3 months I’ve been paying for the mortgage and utilities myself because she was preparing to move out.

Which brings me to two questions:

  1. Could I file a counter claim for malicious turning out of doors? From everything I’ve read about it, she is threatening to kick me out and trying to force me out with a baseless claim and threat of a lawsuit. And it’s out of a house that I currently am the only one paying for. I also have it documented that she agreed and was preparing to move out.

  2. I’ve also read that it can be considered abandonment by a spouse to move out without a formal separation agreement. Would this be true in my case? From everything I’ve read (including her own attorney’s website) it is not recommended to change your living situation without a legal separation agreement. Does anyone have any advice for my situation? Thank you for any help you can provide.

If she pulled an attorney into the mix I highly recommend you retain your own counsel. Her attorney can run you in circles and actually drag things out A LOT longer (ie. more money wasted).

Yes, getting a separation agreement prior to moving out is ideal, you lose a lot of leverage by leaving the house. Abandonment doesn’t apply as much as people think. You need to full tilt disappear or some other extreme behavior.

Also – start making sure your stuff doesn’t start disappearing from the property including important papers.

Malicious turning out of doors is not an action. What you are referring to is a claim for 1divorce from bed and board,and whether it makes sense to file a counterclaim would depend on the entire circumstances. You could explore using a non-abandonment agreement instead. This could allow you to move out while protecting yourself from claims of abandonment. I wouldn’t make any decisions about your course of action until consulting with an attorney.