How to start?


#1

We’re starting on the process - two weeks ago my wife said it was over. We’re both still living at home, and ideally want it to be as amicable as possible. We will be creating a separation agreement since we have some financial issues and a child.
Right now we are going through the attic, dividing stuff up, donating/trashing what neither of us wants. So far there have been no major disagreements, and hopefully there are none.

  • Is it OK to divide stuff up as to ‘who wants it’, versus value? We will specify that in the SA (husband gets X, Y, Z, and all boxes labeled 'husband", etc).

This is preparatory to selling the house.
Since we have to be separated for a year and a day to actually file, if we wait till the house is sold for either or both of us to move out, I’m worried that will be even more stressful than doing this in stages. And of course that extends that year further down the road.

  • Assuming neither party wants to ‘abandon’, and both will continue working on the house and helping pay the bills (and a non-abandonment agreement is signed), can one of us pursue housing elsewhere? Either by renting an apartment or trying to buy a house.

  • If one person has moved out, and the other is still in the house, but both continue working on the house (repairs, condition, etc), does that still qualify as ‘separated’?

  • If I try to buy a new house, since of course I’m still married, what steps do I need to take? I think I recall in the SAs I reviewed some phrasing like “both husband and wife can make transactions without the other person”. Does that SA need to be written, signed, and notarized before pursuing a home purchase?

  • The down payment on that home purchase would be made by a withdrawal or loan from my 401k. What effect will that have on future financial considerations? Can that be taken into account in the SA? Or should I wait till the current house is sold (we plan to split the proceeds 50/50). Should I just pursue rental housing at this point?

We plan to share legal and physical custody of our child, as close to 50/50 as possible. My wife does work, though she does not make as much as I do - but she has potential for a lot more. Her parents also live very close to us, and can be very supportive of her and our son; whereas mine are in another state.

  • Are child support and alimony something we can agree on, or does a court have to do that? While I of course will provide for my child when he’s with me, and during the separation they will remain on my insurance, and he can remain on it afterwards, I would of course like to minimize any other payments I’m making (ideally to zero). Is that possible/feasible?

Sorry for the random nature of these questions, as I said, we’ve just begun on this rocky journey, and while of course my main priority is my child, I want to know how to plan so I’ can take care of myself in the future, and what the possible options are. Thanks in advance for any help.


#2

The two of you may agree to any kind of distribution, and support amounts that you wish. You must separate contemporaneously upon signing a separation agreement, ie, you cannot remain living as husband and wife until the home sells. So long as you consent to separate, one of you can, and should move out of the home. If either of you plans to purchase a new home, you will need to execute a Free Trade Agreement before doing so, otherwise your spouse would have an interest in that new home. All contracts between Husband and Wife must be signed by each of them before a notary public.
So long as you are living in separate places, you are separated.

I cannot specifically advise you on what course of action you personally should take regarding future housing. If you use martial funds (money saved during the marriage) for a new home, the amount will be accounted for in a final distribution of all assets.


#3

So once we sign a SA, we have to physically live separately.
Can the moving out occur prior to the signing of the SA, and if so, does that relinquish anything? (assuming nonabandonment). I envision one of us moving out, dividing stuff, sort of testing the custody arrangements we are considering, and working on the SA during that time since I know it’s not something that should be just written or agreed upon quickly.

If/when one moves out, s/he then needs to basically make appointments and get permission from the resident spouse to come to the marital house, is that correct? Or does that depend on the specifics of the scenario?

Thank you very much Erin for this and all your other responses, I think I’ve read most of them!


#4

Not an attorney, just “been there done that”

Just a few things to remember, and I hope your separation remains friendly… in my opinion separation agreements are not for the “friendly” times, and you can build a lot of flexibility in the terms, they are most used when things go bad. Once signed and notarized, whatever you decide on is binding, and whatever is left unsaid is confusing. Think of things like who picks up/drops off the child for visitation… no big deal if you live close… extremely big deal if one of you move. Who claims the child on taxes (its my understanding, if written into an agreement that can be alternated year to year). I learned tons of useful things just reading separation agreements online, constantly going “hmm I didn’t think of that” unfortunately for me, I learned them too late, and currently drive 18,000 miles a year to visit my kids. Good luck, and I hope it remains friendy… its easier on everyone all around, including the child.


#5

Yes, you must separate before, or very soon after signing the Separation Agreement.
So long as you both agree to end your cohabitation there are no abandonment issues, but the person leaving the home is no longer allowed to re-enter the house without the permission of the other.