Delaying Your Divorce? Why Lengthy Separations May Do More Harm Than Good

Many couples will seek to immediately end their marriage and resolve any financial issues without significant delay. On the flip side, there are those couples who will be separating but not divorcing, thereby allowing matters to remain as they are for months or even years.

Whilst this sort of drifting apart may well be less unpleasant and acrimonious in the short-term, in the long-term, it can be financially and emotionally damaging.

Separating but not divorcing – the potential issues

Here are some of the main reasons that you should be wary of separating but not divorcing:

1. You have no control over how your spouse is managing matrimonial assets

If you are living apart, then you may well be completely unaware of what is happening financially. You are unlikely to be able to keep abreast of what your spouse is earning, spending, investing, selling or buying. If your spouse is running up debts, there is potentially going to be an argument about who should be responsible for repaying them.

2. Long-term separation provides the perfect opening for your spouse to hide assets

A long separation makes it easy to miss important signs that your spouse may be hiding marital assets and the longer the separation goes on, the easier that becomes. Don’t forget that within financial remedy proceedings, the direction of the Court is to provide 12 months’ statements for all accounts. If you have been separated for longer than that, it can be difficult to see what has gone missing.

3. If your spouse’s circumstances change, your settlement could end up being far less

Your divorce settlement will be based, for the most part, on the current financial circumstances of you and your spouse.  If your spouse loses their job or becomes ill or experiences other changes during your protracted separation, the amount of maintenance you might expect to receive could be significantly reduced.

4. Your spouse could move out of the country

During a long term separation, your spouse could move overseas, making for any number of complex legal difficulties in not only locating assets and income, but also obtaining a fair share of them.

5. You (or your spouse) could meet a new partner

Although a new relationship may help in terms of getting over the end of your marriage, while you are still legally married it is unlikely to help your settlement negotiations. You also need to bear in mind that if your spouse is in a new relationship, he or she may be dissipating marital assets by buying gifts for their new partner, taking their new partner out or possibly even providing financial support for them.

6. Your standard of living could reduce

During a long separation, you may be forced to lower your standard of living. This could make it more difficult to obtain spousal maintenance based upon your previous marital lifestyle. If you have been able to make do with less, your spouse can argue that you need less to live on than you did while the two of you were together. If you have been surviving financially for a number of years, any judge involved in your case is more inclined to agree.

7. If your spouse gets into legal difficulty with their finances, you may suffer financially, too

No matter how separate your day-to-day lives become, you are still legally married and potentially still hold joint assets. Without an agreement that specifies otherwise, this means that if your spouse is sued or engages in any financial misdeeds, your assets could be at risk. The implications for your financial security could be tremendous so it is always advisable to have a formal written separation agreement to put in place as much protection as possible.

8. Closure

Whilst divorce is often seen as an ending, it also represents a new beginning and a significant turning point for many couples, who finally achieve closure and can move on.

Separation agreements

In some circumstances, separating but not divorcing straight away can be more beneficial. In such cases, or when a separation is likely to last longer than a fairly short period of time, it is absolutely vital to seek legal advice and enter into a separation agreement.

This agreement will then document issues such as the division of assets and debt, as well as spousal and child maintenance and even contact between the children and the non-resident parent. Whilst such an agreement may be subject to review if there is any significant change in the financial circumstances of you or your spouse during the period of separation, it shows your intentions to the Court and therefore, if entered into correctly, would carry weight in any financial determination made by the Court as part of a later divorce.