Move Before Separation Agreement?

I have consulted with two local NC attorneys in preparation for divorce. I have not announced this to my spouse yet. One attorney told me to stay in our marital home until we have a separation agreement. The other told me there is no reason to stay, nor is there any reason for me to continue paying the mortgage. Our marital home is legally hers. We purchased just before marriage and I’m not on the deed, note, or deed of trust, but have a substantial marital interest with about $200K total equity in the home.

I want to move out asap and establish the date of separation. Since I am a state employee, I want to end accrual of the marital portion of my pension. So is it better to stay or does it really not matter? We have no minor children.

Thank you

There are advantages and disadvantages to both options, and neither is wrong.

If you move out now, it will start the date of separation and will “freeze” the marital estate for equitable distribution valuation purposes. If you are the supporting spouse, you will likely need to continue to contribute to the expenses of the home to avoid a postseparation support and alimony lawsuit claiming you have abandoned your spouse and withheld financial support for a dependent spouse. Equitable distribution (property distribution) can be negotiated during the separation period.

If you choose to stay in the home while negotiating the terms of the separation, the advantage can be that when you do move out, you will know exactly who is getting what asset, who is having to pay what and to who, etc. Sometimes it can be hard to negotiate these things while living in the same home, especially when there are no children involved as a motivating reason to reach a settlement prior to actually separating. For equitable distribution valuation purposes, the value of the marital assets does not become “frozen” until a separation actually occurs, so any growth in retirement, pension, etc. will continue to be marital property subject to being divided equally.

Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

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Thank you Anna. This is very helpful.