This might seem like an odd thing to say, but … You are to be heartily congratulated! First, for having the courage to make what is obviously a difficult decision to separate from your husband of 15 years due to his alcoholism and its effects on you and your children. Second, for working out a very reasonable sounding settlement of all of issues that arise when people separate.
Unfortunately, while it sounds like a practical solution, a court will not consider you and your husband actually separated if he lives in the basement, even if it has its own facilities.
As to whether you can prepare your own Separation Agreement. Yes, you can, but I don’t advise it in your case. You and your husband are entering into a legally binding contract that involves Child Custody, Child Support, Property Distribution (including retirement accounts) and Spousal Support/Alimony issues. What could be more important? This document touches everything that is important in your life and the risk is high of leaving something out or not knowing what you are ultimately agreeing to. This is especially true for you, in my opinion, because you are going to have primary custody of the children and will be on the receiving end of child support payments. My advice to you is that you retain an attorney to draft a Separation Agreement that reflects the agreement that you and your husband have reached. The cost to draft the agreement should be reasonable if you are able to describe the terms of your agreement to the attorney up-front. Therefore, you won’t need to pay for the attorney to “negotiate” the agreement with your spouse, which can greatly increase legal fees and costs. While one attorney cannot represent both of you, your husband does not need to retain a separate attorney if he feels comfortable signing the Separation Agreement after reviewing the document that your attorney drafts. This is quite common. We have many clients who’s spouses are unrepresented.
If you and your spouse cannot fully resolve any outstanding issues and decide to both hire attorneys, but still want to work an agreement very amicably, you might consider using the Collaborative Law model. You can read all about this out-of-court, low-stress and positive model to resolving domestic disputes on our website.
Last, but not least, I wish you and your family the very best as you make the transition to your new life.
As to your question about whether you would jeopardize getting possession of the marital residence if you move out, the answer may be to ask your husband to sign a “Non-Abandonment Agreement” which is an agreement that one party is moving out to effectuate a separation and an acknowledgement by the other spouse that it is a mutal agreement and that the spouse moving out is not abandoning. However, it also sounds to me as if your husband’s alcoholism is sufficient justification for your separation and would definitely be a relevant factor on this issue.
Robin F. Verhoeven
Attorney at Law
Rosen Law Firm
4101 Lake Boone Trail, Suite 200
Raleigh, North Carolina 27607
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.