Marital Home and Child Custody

I am in the process of planning to legally separate from my husband of 11 years. I had planned to start this process in January until I was laid off from my job (the company downsized and my position was eliminated). As a result, I put the separation on hold until I could secure employment. To date, I have not been able to secure employment (and I have proof of my efforts) because either I’m overqualified or not qualified at all (I live in a Micro area of 40,000 people). I have exhausted almost all of my savings and have started to apply to jobs in the nearest Metro area - the Triangle. I am starting to get leads and one is very strong. My spouse and I currently live in the marital home and we have one child together. I feel I have done everything to try and secure employment locally but have been unsuccessful. My husband works a non-traditional schedule and I am the primary caretaker for our daughter (medical, dental, vision appointments, ADHD related appointments). My husband does attend IEP conferences but only because I schedule them and relay to him when they are scheduled. The last Parent/Teacher conference he arrived 10 minutes before the meeting ended. Recently, he forgot to pick her up from school. So, here’s my question: If I am offered employment out of town (two hours away in NC), will I be legally penalized for leaving the marital home and moving with our daughter? He may initially bark about moving with our daughter but he’s too lazy to assume fulltime responsibility of her. I am not in a financial position to turn down employment because once we separate I have to be able to make a living. Would it be ok to incorporate this into the agreement after I accept employment but before I move out? Even though I strongly feel he wouldn’t want custody, I just want to cover my basis just in case he changes his mind and decides to be uncooperative. Also, we have retirement accounts but I don’t have very much in mine (6K) and he had 22K but took out half as a loan to start a business. Ultimately, there isn’t anything of high value to fight over. Our cars are paid for and it’s clear who drive what.

The other question I have is when we discuss the terms of the separation agreement, can we lay out terms regarding the marital home? I don’t want to keep it and I’m not sure if he wants it. We are underwater (by about 10K) and we wouldn’t be able to pay the difference. So far this is what I’ve researched as potential options:

  1. Have him apply to assume the mortgage and quitclaim the deed to remove my name from the house and loan

  2. Leave the house in both names and have him live in it (having him agree to keep up the payments) until we can sell it and break even

  3. Short sale the home and ruin my credit but be free of the joint obligation

If we can agree on reasonable terms regarding the home, can we lay it out in the separation agreement? For example, we agree that he will remain in the home for 1 year and take responsibility of it until he can either refinance or sell the home to remove my name.

Any guidance on this would be greatly appreciated.


Yes, I would address your potential move in your separation agreement. If you don’t address it, and you ultimately move and take your daughter with you, your husband could sue for breach of contract based on your violating the agreement. And yes, you can agree that he will remain in the home for 1 year and take responsibility of it until he can either refinance or sell the home to remove my name. The beauty of handling your issues through a separation agreement, is that you can be creative and draft the agreement to best suit your needs. Where a judge may order that the house be sold, you and your husband can agree to any of the options you have mentioned in a separation agreement.