Do i need a separation agreement here?


My stbx refuses to work through a separation agreement although we’ve been through mediation several times. I can file for divorce in 6 months and wonder if pursuing an agreement is even in my best interests under these circumstances. I am considering that I should just wait it out and then file for divorce. Here is the full story:

  • I had an emotional affair with a someone that I plan on marrying once I am divorced. The evidence he has includes phone records of many calls per day, phone records that place me in locations that are inconsistent with the business trips I said I was on (5 times), verbal admission from me to an emotional affair and to being with him when I said I was on business trips, a picture of us kissing that he obtained from my laptop without my permission, an IM conversation between me and my boyfriend’s friend where I said he was my boyfriend and that I was cheating on my husband which was also obtained from my laptop without my permission
  • He wrote me a 3 page letter forgiving me profusely for the affair, begging to work it out. We went to counseling several times for a month and had sex twice. He reluctantly moved out 3 months later only after I convinced him it was over.
  • He is voluntarily unemployed and is therefore the dependent spouse for almost 4 years now. I did not agree to this arrangement and it was a huge point of contention in our marriage that he did not work and we depleted most of our savings (from our home equity) because of it. He has 2 degrees and was making $60k prior to his layoff and decision to not seek employment. He is supposedly trying to find a job now but is not looking outside of his field. Our children have been in daycare rather than staying at home with him (i.e., he was not a stay at home dad)
  • I currently live in the home, with a mortgage solely in my name and the deed in both names. The house is now for sale under an agreement with a realtor that we both signed
  • We have 2 children who reside with me and visit him for 3 nights every other weekend
  • The unsigned mediation agreement states that he can have 50/50 custody if and when he is ready (I do not like this clause)
  • He is not paying child support
  • He lives in an apartment that is primarily in my name with him as a resident (he had no job and could not qualify for the apartment and I needed him out)
  • I have a 37 page journal of verbally as well as some physically abusive behaviors that date back before we were married
  • All assets and debts have been divided, except for my 401k that was going to be used to make everything even. I was going to give him $23k under a QDRO.
  • I am still seeing the boyfriend, although all correspondence takes place via our work email and cell phones, so records would need to be subpoenaed from very large institutions with large legal staff which could get costly for stbx; I understand that I can date this person openly after Oct 1 under house bill 1110 without it affecting a claim for alimony, or a civil claim for AA/CC against him
  • I had been paying him $1800 per month in pss for 5 months per our mediation document
  • I have paid about $3000 to a contractor and landscaper to get our home ready for sale per the recommendation of 3 realtors. Our mediation agreement stated he would pay half but he does not have the money. The plan was to settle-up on the expenses from the proceeds.

My only leverage in getting him to complete an agreement is the QDRO and the fact that I’ve stopped paying him alimony since he threats that it doesn’t count since there is no signed agreement. BUT…

My question to you is what is my risk if I don’t pursue the agreement and just let the time run out? I understand that once an absolute divorce is granted (in 6 months plus the time to process it) that there is no claim for alimony and no claim for ED, meaning he could no longer get my 401k via the QDRO. I also understand that while a judge would always hear a custody case, that since the children are living with me and we’ve established a visitation schedule for 6 months, that the judge would likely rule in favor of keeping that schedule unless it could be proven that it was detremental to the children. And I can still file for child support based on an imputed income to him. As for the fees paid for home improvement, would that automatically come from his share of the proceeds or would I need to fight for it if he refused? Would I have grounds for repayment for half?

The way I see it is that my only risk in not having an agreement is fighting over visitation for years to come (holidays, birthdays, etc), plus there would be no waiver of AA/CC for the boyfriend for what happened during the marraige. Other than that, it seems it might be in my best interest to let it ride. What are your thoughts? Could I make it so that the agreement only contained the child custody and visitation arrangements?


First I wanted to note a few things:
• House bill 1110 does not prevent your ex from using the post separation behavior as corroborating evidence that an affair occurred prior to separation.
• Your unsigned mediation agreement is not binding, and therefore any of the provisions are irrelevant, non binding, and inadmissible in court.

If you do not pursue the agreement and file for divorce, your stbx will likely file counterclaims for alimony and equitable distribution of property. So long as the claims are pending prior to the divorce being granted they are valid. The divorce is not granted in 6 months plus processing time. An action must be filed for divorce, and the proper channels must be followed, depending on the county after the date of filing a divorce can usually be obtained in 60-90 days.

As for the fees in for home improvement, noting his automatic and a judge could rule in any way he or she sees fit with respect to those expenses.

If you do not have an agreement at the time of divorce, you could inadvertently end up in court, as filing a claim for divorce forces the other party to place the pending issues before the court.


To make sure I understand, are you saying that the risk in waiting it out until after I file (which I can do in 6 months) is that he could file ED and PSS claims prior to when the divorce is granted, and that it would be better to come to an agreement before he actually files?

Does the post separation behavior “erase” the condonement/forgiveness within the letter? So let’s say I start officially dating the boyfriend after Oct 1st, does the letter still condone the behavior during the marriage and I can therefore be free to date? Or do I still need to worry until I am officially divorced?


He can file his claims with the court at any time prior to divorce. In most cases I believe that reaching an agreement is the best option, though it is not always possible.

Post-separation behavior in and of itself will not erase a condonation