Living together while separated or divorced is not usually what anyone would choose for themselves, but for some it’s necessary. According to Kelsey Queen, managing attorney at family law practice Sodoma Law, some couples lack the financial means to cover the cost of two households; others aim to limit the disruption to their children’s lives that can be caused by living in separate homes.
If you find yourself living with your ex, you’ll undoubtedly be faced with challenges ranging from financial (who pays for what?) to personal (how do you handle dating?). Setting some rules and boundaries right from the beginning is crucial to avoid arguments and potential legal ramifications. Below, Queen outlines what you need to know.
Know the law
If you’ve decided to separate from your spouse or common-law partner, it’s key to understand your state laws—according to Queen, in many states, parties must live separately and apart in different homes in order to be considered legally separated.
“In order to obtain a judgment of divorce, parties usually must live separately and apart for the entirety of the prescribed statutory period (e.g. one year in North Carolina but it may vary by state),” she says. “Regardless of the parties’ intent, married couples who continue living together are usually not considered legally separated.”
As such, assets and debts acquired by either party while the parties are living together are considered marital assets and debts which will be equitably divided by the parties. “Equitable Distribution statutes dictate that your marital estate is valued based on the fair market values of assets and debt balances as of the date of your legal separation,” Queen explains. “If you’re choosing to continue living together after forming the intent to separate, bear in mind that you can be held responsible for debts acquired by your spouse during that period. Similarly, assets that you acquire, even in your individual name, during that period are marital assets to which your spouse is entitled to receive an equitable portion.”
In addition to issues that could arise in the context of dividing marital assets and debts, according to Queen, continuing to live together can affect a dependent spouse’s entitlement to spousal support, such as dating other people.
“In North Carolina, and many other states, a dependent spouse (meaning the spouse receiving spousal support) is barred from receiving spousal support if the court finds the dependent spouse engaged in ‘illicit sexual behavior’ with a third party prior to the parties’ date of separation,” she says. “If you continue residing with your spouse after forming the intent to separate, romantic relationships you have during that time could result in being barred from receiving spousal support.”
Set expectations and rules
If you have ended your romantic relationship while continuing to live with your spouse, Queen says it’s important to set expectations up front and understand the legal ramifications of continuing to reside together.
To avoid these issues, she recommends that parties memorialize their intentions in a notarized contract, once they’ve decided to separate.
“While parties can only execute a separation agreement if they are living separately or intend to do so in the immediate future, parties who intend to continue residing together have the option to execute a postnuptial agreement which dictates and sets parameters around the division of the parties’ marital estate and the dependent spouse’s rights to support,” she says.
Do what’s best for your children, always
When children are involved in any divorce process, it’s never easy—which is why Queen says “it is vital that parties shield their children from the adult problems that can arise and work together to limit the disruption to children’s normal routines. Those who continue to live together after forming the intent to separate should consider the minor children’s best interests when making that decision.”
As an alternative to living together and perhaps having things be less complicated, some couples choose to “nest” instead of continuing to reside together. “Nesting” means that both parties maintain a home just for use for their kids, with each party also acquiring their own residence. Then, the parent scheduled for time with their kids uses that shared home. The parties switch depending on the schedule. “When parents nest, they aren’t living together in the technical sense, but they are allowing the minor children to consistently reside at the marital residence while absorbing the burden of moving between homes. Other parents choose to stay together until their minor children have moved out of the marital home.”
Regardless of the method used, Queen maintains that the children’s best interests should be the highest priority. “If continuing to live together in the technical sense or choosing to ‘nest’ creates a tumultuous dynamic that exposes the minor children to adult arguments, it is likely the arrangement isn’t serving the minor child’s best interests and is causing emotional damage that outweighs any beneficial gains.”
Be realistic about your living situation
While it might make financial or even logistical sense that you remain with your ex underneath the same roof, if you are continuing to live with your spouse after forming the intent to separate, Queen says, it is important to understand that you aren’t legally separated.
“Living together, in and of itself, is considered an act of holding yourself out as a married person,” she explains. “Emotionally prepare yourself that other third parties are not privy to the conversations had between you and your spouse behind closed doors. From the outside looking in, society sees nothing different. Approach the situation with caution, make a habit of memorializing agreements and conversations in writing, and be honest with yourself about whether the arrangement is beneficial.”
What’s also key, she says, is that from the outset, you and your partner need to understand that financial choices made during an intact marriage (even if you consider yourself separated) have little hope of being undone in the court system—which means you must be vigilant in managing financial matters and ensure you have access to any and all accounts acquired since your date of marriage.
“For example, let’s say on January 1, you and your spouse decide that you are ending your marriage but will continue living together,” Queen says. “On January 1st, your spouse had $100,000.00 in a savings account. On March 1, your spouse’s savings account has $0.00. If you had begun living separate and apart on January 1, you would have been entitled to a portion of the $100,000.00 in savings through the division of marital assets. If you begin living separate and apart on March 2, the savings account will be valued at $0.00 and you cannot go back and obtain a portion of the value existing on January 1.”
Which is why it’s important to know exactly what you’re entitled to and responsible for while living together even if you consider your marriage to be over.
If parties wish to be divorced, says Queen, it’s also equally important to understand that eventually you must stop living together. “[To have a divorce], there must be an end date and the parties must begin living separate and apart.”
