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Can we continue to live in the same house if we’re separated?

July 1, 2018

During a separation or divorce, who gets to remain in the family home is often a source of contention amongst couples. Both parties usually have significant time and money invested in the home, contributing to a strong emotional connection to the physical structure. While many couples choose to live apart during a separation, some prefer to live in the same home until the divorce is finalized. Doing this requires open communication and respect, and in some states, couples have to live apart for a certain amount of time before the divorce can be finalized.

Legal Implications

Living together during a separation isn’t always possible, depending on the state in which a couple resides. Some states, like North Carolina, require spouses to live apart for a year before a divorce can be finalized. Other states allow spouses to file for divorce based on fault grounds, which doesn’t require them to live separately for a certain period of time.

In states that allow spouses to live together during a separation, it’s best to establish boundaries both physically and emotionally. This may mean having two separate entrances to the home, sleeping in separate bedrooms, not attending social functions together, clearly stating to family and friends that they are no longer together, and avoiding any other situations that may make it appear like they are still acting like a married couple.

Reasons Couples Choose to Cohabitate During a Separation

Living together during a separation can be extremely challenging. Unless the split is amicable, couples generally only continue living together out of necessity. Oftentimes, spouses struggle to spread their incomes to accommodate two homes. In other instances, children may be involved and neither spouse may be willing to leave until custody has been established.

Most states are 50/50 when it comes to dividing marital assets. If one spouse decides they want to keep the house after a divorce, the other spouse must be compensated either financially or through another means for their share of the house. This may mean the spouse that keeps the home has to give up rights to the other spouse’s 401K, a portion of their savings account, or another financial asset.

In some cases, one spouse may be worried that leaving the home will give the other spouse reasons to site abandonment or desertion as grounds for a divorce. If they are the spouse earning a higher income, they will often be held responsible for continuing the mortgage and insurance payments on the house until a settlement agreement has been reached.

Whether or not a couple lives together during a separation, many factors go into determining how property is divided during a divorce. Some of these factors include:

  • The length of the marriage.
  • The financial contribution of each spouse towards the house.
  • Each spouse’s ability to maintain the property after the divorce.
  • If children are involved, which spouse will have primary physical custody of the children after the divorce.

How to Make it Work

Unless physical or emotional threats are involved, couples can successfully navigate living together during a separation if both parties are committed to making it work. If domestic violence is an issue, the first priority of the victim should be getting to a safe space, whether or not they are concerned about keeping the home. Their safety and the safety of their children should always be of the utmost importance.

If couples do choose to live together during a separation, clear guidelines should be established at the onset of their decision. Things like physical intimacy, visitation with the children, financial obligations, where each spouse will sleep, and responsibilities around the home should all be discussed.

Living together during a separation does not work for all couples. Another option spouses often turn to during a separation is referred to as “nesting” or “bird-nesting”. This usually occurs if a couple has children. This practice requires one spouse to leave for a specified period of time, often a few days to a week, while the other spouse stays in the home. The spouse that leaves may stay with a friend or family member, or even rent a hotel or apartment while they are away.

After the established time frame is complete, the spouses will rotate so they each have equal time in the home. Some lawyers caution against nesting if a child custody battle is looming, especially if one spouse is seeking full custody. If the spouse seeking full custody has already begun cooperating with a nesting arrangement, a judge may want to continue the routine so that the children’s lives are minimally disrupted. For this reason, nesting should only be practiced if both parties agree to continue the established child custody routine after the divorce is finalized.

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