Do I need to be legally separated before moving out with the kids?
Legal separation is a concept that women (and also men) seeking divorce need to understand clearly. It is also important to realize that this type of marital separation is not offered in all of the 50 states. This means that a woman will need to investigate as to whether or not her state provides it.
The idea with a legal separation is that couples carry out all of the activities that would be a part of the divorce. The main difference is that the couple is still married at the conclusion of the filing and approval, though it is mostly in name at this point. The marital assets will be divided up by the court and alimony set.
The husband and wife then live individually on their own. Why would a couple do this instead of a divorce? It allows them to see how a divorce feels. Still more people are not ready for divorce or simply do not believe in it as a concept.
The legal ramifications of such a separation differ in every state, which is why a couple should consult with an attorney before moving forward. There are cases where the legal separation will end up costing the husband and wife far more than a clean and straightforward divorce (as legal separation nearly always ends in full divorce anyway). It is worth going to talk with a marriage counselor before moving forward with the legal separation to decide if there is desire on the part of both husband and wife to work out the marital problems and issues.
Before Moving Out With the Kids, a Wife Should Know What Support She Can Expect
It is important for the wife to be clear on what financial resources she will have to support the children on her own if she moves out with the kids before the legal separation is finalized. Even during a separation, the wife with kids will be entitled to receive child support payments. The woman might also appeal to get spouse support from the court.
It is important to remember the cost of the monthly mortgage on the house. As a marital debt, the mortgage still has to be paid, whether both the husband and wife are each working or not. Besides this, the wife may have to pay monthly living expenses somewhere for her and the kids if they leave the family home, something to keep in mind as it adds a considerable expense.
What About a Lease on the Apartment?
Regarding staying in an apartment with the kids and trying to make the husband leave in a legal separation, this comes down to whose names are on the actual apartment lease. When the lease is in both names (the most common arrangement for a husband and wife), they both possess equal rights to stay. Yet if the apartment is entirely in the husband’s name, he could order the wife to leave (with or without the kids). Similarly if the lease is in the name of only the wife, she can insist that the husband has no right to stay, but the kids can remain with her.
Do I need to have a legal separation agreement on file in order to move out with the kids?
Now that we have fully reviewed what legal separation is and what it does and does not entail, we can move on to the heart of the question: does the wife need to be legally separated before moving out with the kids? The simple answer is no. Both the husband and the wife have the inalienable rights to leave the marriage and the house or apartment without filing for either a legal separation or a full divorce.
In fact, numerous couples do choose to physically move out and live apart without getting the courts involved in any way whatsoever. This is alright if the husband and wife can amicably agree to share the time with the children in a fair manner. For many couples though, the time with the children proves to be the proverbial straw that breaks the camel’s back.
They may be able to split up the marital assets equitably without a judge’s order, and even to arrange for spouse support (and even child support) payments. Yet sometimes keeping to a fair arrangement for sharing the children proves to be simply too much when love and emotions surrounding the dear children are involved. At this point, it becomes crucial to file, requesting the family court to grant an order of child custody and child visitation access orders. This ensures that fair time will be given to both the mother and the father, whether they fully divorce or only live legally separated in the future.
The wife should be aware of the fact that by moving out herself (with or without the kids), she can actually forfeit some of her marital asset rights to the house in the final divorce order. This is because in a number of states, the court considers this early departure to be abandonment of the home. It explains why it is ultimately better for the wife and kids if she can endure living in the family home long enough to at least file the legal separation motion with the family court.
This is not impossible if there is not a brutal domestic violence situation involved in the marriage. By biting the bullet and doing this, she will ensure that she possesses the same rights to the family house as the husband does when the marital assets are divided up and distributed by the family court in the end of the process.