Is it advisable for parties to separate and wait one year, or longer, before filing for divorce and a resolution of the property, support, and children’s issues?

It is somewhat common for people to informally separate and remain separated until they are ready to divorce and address support, property, and parenting issues. This informal separation can go on for a year or longer without the parties ever having engaged in a legal process.   As in everything in life, there are pros and cons, just a few listed here:

Pro:  Reduced anxiety:  A voluntary separation can help reduce the anxiety of divorce by giving the parties complete control over the process.  Nothing unexpected is likely to happen, no scary courthouses, lawyers or judges will be involved in their lives. The parties are free to deal with each other and the kids on an a la carte basis knowing that they will not be contradicted otherwise by a “more powerful” third party.  

Pro:  Reduced legal fees:  Sometimes litigation from the outset is required, such as in cases where we are dealing with a narcissist.  However, it is not appropriate to begin every divorce case with litigation.  Cooperative Law and Collaborative Practice are two established, out of court legal processes that allow parties to proceed with separation and divorce in a respectful, dignified, and cost effective manner.  In these situations some of the best family law lawyers will use Settlyd Family Law software to find an interim support, parenting, and property agreement.

Pro: Flexibility:  Husband and Wife are less restrained to try out different parenting arrangements, different support arrangements, change up use of joint property, etc. when there is no legal process or court orders engaged. For the right family, the ability to employ various different options to find a resolution that fits best with their future needs is what works for them.

Con: Unequal balance of power:  When people voluntarily separate, they often do so without (or against) legal advice.  An informal separation can leave the person with less power in the relationship vulnerable. This is often the Wife who has imposed upon her a separation by a more powerful Husband. In the long term, Wife runs the risk of establishing a status quo that may not be in her, or the children’s, best interest.

Con: No enforceable rules:  Most times people with lawyers separate and agree to (or a court will order) temporary ground rules for parenting arrangements, financial support, and use of marital property. These ground rules are written and placed in the form of a court order or, sometimes, a written stipulation.  A court order or a properly written stipulation will be enforceable and a person can be compelled to follow its terms.  Without a temporary court order or written stipulation, the parties must trust each other to comply voluntarily with their unwritten agreement.

Con: Status quo:  When parties separate for a long period of time and arrange between them, by way of their behavior, to parenting arrangements, support payments, and use of property, they often unwittingly establishing a status quo that may be difficult to change later.  For example, if a party has been accepting $2,000 per month for the past 12 months without complaint, they may have a hard time justifying a need of $3,000 to a judge.  If one party claims that the other party is not a fit custodian for the children, their credibility will be damaged if they had previously followed a 50-50 parenting plan without trying to adjust it.

Con: Lack of evidence:  Without a court case one party does not have to provide the other party with any evidence.  Without a filed court case, subpoena’s can not be issued, Interrogatories can not be asked, and a party can not be compelled to provide testimony or produce any documents, such as 401k or bank statements.  All disclosure will be voluntary and left to the good intentions of the parties.  If one party has been habitually uninformed during the marriage, they could be at a distinct disadvantage.

For families with kids, real estate, retirement accounts, and all the other stuff normally acquired during a marriage, its always a good idea to get help. Therapists can be very beneficial in assisting people keep a clear head during the process.  A clear head means that when it is time to work with the lawyers, they will make the best decisions possible for their family.  

Guy Vitetta

Charleston, SC