Living Under One Roof: Co-habitation While Legally Separated

Defining Legal Separation

Under the umbrella of family law, the most common — and likely most well-known — forms of relationship dissolution are divorce and legal separation. While divorce completely terminates the marriage, a legal separation does not, leaving both spouses legally married to one another. The most significant difference between the two is that the "separated" spouse remains entitled to certain privileges — such as those available through an employer — as well as being entitled to a future share of his or her spouse’s pension or retirement benefits.
In addition to spousal support, legal separation can also address matters such as child custody, visitation and support, and division of assets and debts. Like divorce, legal separation must be mutually agreed upon by both parties.
Because a legal separation does not, by definition, dissolve a marriage, there are no residency requirements. In other words, if the marriage took place in another state, at least one spouse must be a legal resident for only six months prior to filing. In a case where one spouse refuses to file or agrees to the terms , the other spouse may legally file for separation on his or her own. Procedurally, it’s much the same as a divorce, and both spouses are required to provide a list of marital assets, liabilities, pension information and other items subject to equitable distribution.
Divorce may be necessary if one spouse is unwilling to negotiate a settlement with the other. If a spouse does not want to divorce, however, a legal separation may be an option. Where a spouse is uncertain whether to move forward with a divorce or stay legally separated, proceeding with a separation provides a "stable" status until such time as a divorce becomes preferable or necessary. With respect to a pending divorce, a legal separation can impact matters of support and division of property to a degree. In some cases, however, couples who separate do so with hopes of reconciling their relationship. In the event that reconciliation occurs, a legal separation can be undone by having a lawyer draft a consent document for the couple to sign, which will terminate the legal separation.

Reasons for Cohabitation During Separation

There are a number of reasons why couples may choose to continue to live together, even if they are legally separated. For many, it is an economic necessity. In fact, it is quite common for one spouse to ‘move out’ of the family home while the children remain behind in the matrimonial home with the other spouse during the pendency of litigation. Oftentimes, the spouse ‘remaining behind’ cannot afford the financial burden of the mortgage, property taxes, debt and expenses on his or her own and therefore the parties agree that the spouse who moved out will continue to pay a portion of those expenses to cover the balance of the cost that is no longer covered by the ‘live in’ spouse. For those who elect to live together, their reasons may vary but include such factors as the desire to remain together for the benefit of young children, the hope that they may someday reconcile, the couple’s strong religious beliefs that morally do not permit them to be intimate with anyone aside from their spouse, or one or both have significant emotional support needs and the thought of separating from their spouse is unthinkable.
It goes without saying that the decision to continue to live under the same roof while separated is a complex one. Factors such as the couple’s ongoing relationship needs and their differing lifestyle preferences may have substantial impact on the level of comfort within their living arrangements. Couples who proceed with the arrangement despite the obvious complexities of living together ‘after the fact’ often see it as a temporary solution until their professional lives can be disentangled through legal assistance and creative negotiations. Nonetheless, few want to remain in this living arrangement for an indefinite period of time as it can be exhausting and unhealthy emotionally. Whatever the circumstances that led them to make the decision, these couples recognize that separation is a journey, not a destination. Living together under one roof is a temporary and practical solution to helping them navigate through their lives as they work towards closure in the shortest amount of time possible.

Establishing Boundaries and Clarifying Expectations

When the decision has been made that it is no longer possible to live together as husband and wife, it is appropriate to also determine what will be expected of each spouse in that new environment. Although it is not yet a divorce, the separation of the spouses can be so profound that it is wise to examine what will be expected of each other during the pendency of the divorce action.
It is a very rare couple that can come to terms very quickly regarding the "new usual." Without some guidance or supervision, many people will revert back to the "old ways" that are so familiar. Any efforts you have made to resolve your issues through a counselor or within the family will generally fail if not also put in writing. These discussions should outline what is working, what is not working, what steps will be taken to resolve the outstanding issues, and any deadlines that you might establish. A deadline can be as simple as the next two weeks, or "until the end of the month." The more accurate the description of the problems and the solutions seen, the greater the chances for success.
For some couples, it may be necessary and appropriate to engage a third party. The professionalism of a trained counselor might be necessary, for either a better understanding of feelings and behaviors, or perhaps to help answer serious questions.
The other option is to let an attorney handle the negotiations, either for each party or together. The basis of any negotiations can follow the same process as outlined above, but can be done with the supervision of an attorney. That supervision in the attorney practice actually allows a more open discussion of the feelings of the parties. The attorney does not have to be involved in an emotional way. The negotiation can start very simply – "take out the garbage" – or "now you no longer have to listen to my music." The goal is to outline the new usual and to work towards resolution of the issues, to set the ground rules, and to acknowledge that there will be issues that need attention in the future.

Financial Considerations When Living Together During Separation

Financial considerations for living together while legally separated include budgeting. How much does it cost to run the household? Consider the expenses involved including: mortgage payments, property taxes, utilities and household supplies. Typically each spouse should contribute to the household, either by earning income or through non-monetary contributions (maintenance of the home and children).
Separate spousal accounts should be established. Each spouse should retain a portion of their income in their separate name. An account in the other spouse’s name may be opened as long as there is joint access. This is important to ensure that the other spouse can pay for the day to day expenses of the home, including expenses outlined above.
The parties need to be aware of their legal obligations to each other. Under the Divorce Act, the court has jurisdiction to order support in circumstances where one spouse needs support and the other has the ability to pay support orders after considering the means and circumstances of each party. Similarly, under the Family Law Act, where there are children, the court has similar jurisdiction to consider the needs and means of the parents and children. The Spousal Support Advisory Guidelines (the "Guidelines") provide some guidance on spousal support awards.
Dealing with support obligations on an interim basis may provide some uncertainty. Doing calculations to get a sense of the amount is prudent. The parties should agree to exchange net disposable incomes, and to share in proportional expenses (i.e. based on income). The share of the expenses will fluctuate as incomes vary. It is important to review and discuss sharing of expenses and to exchange information about the ability to meet expenses as needed. Parties should also obtain legal advice as to whether an application should be made to obtain a spousal or child support order.

Effects on Children and Family Relationships

In this era of marital challenge, more families are "legally separated" rather than divorced. It sounds simple enough—don’t love each other, get a divorce, and go your separate ways—but when children are involved, the effects on family structure and order can be catastrophic. When one parent leaves the family home and the children are left with the other parent, the trauma of having to leave the home, move schools, friends, pets, and neighborhood can be exceedingly difficult. When the separation is amicable enough to bring one parent back to the family home, the three become a shameful secret—the parent who wants to keep the family together convincing the children that living together is no different than living together in a family. Gradually, however, the children begin to realize that while the adults may "play house," there are strict separations in the house that the parents enforce. Add to the mix is the negotiating parent who visits only periodically, who spills secrets of the private home life to the children of the home parent, and who has a play date of his or her own with someone other than the enrolled parent . Since the Miami-Dade County Family Court (Judge Mara Ricker, Division FC) enforces a strict "one family, one home" rule, these types of situations are seldom heard. When a party to a pending divorce action is facing removal from the family home, it is not unusual for the party seeking to relocate to seek enforcement of the automatic injunction that the other spouse immediately vacate the family home. Consider the children. In Leonard v. Leonard, the husband was the primary caregiver for their five year old son. Approximately two months prior to the filing of the domestic relations action, the wife moved out and remarried, leaving the husband as caregiver. The trial court determined that because the father had been the primary caregiver and had turned down promotions in order to be available to the child, he was entitled to be designated primary residential parent. The Second District Court of Appeal agreed and affirmed. (Leonard v. Leonard, 939 So. 2d 205 (Fla. 2nd DCA 2006). Without question, these are hard cases to settle.

Legal Rights Implications

Just because you are living together when you have legal separation does not mean that the courts will presume you are living together for any other purpose. The law presumes that all married couples living together are supporting each other, and the courts in a legal separation or divorce proceeding, can make awards of spousal support (alimony) and divide property between you, upon the finding of the separation date. A legal separation divides your property and defines your spousal support (if any) and child support obligations as of that date. If you then live separately for a year and then decide to get back together, the judge in your divorce action will have to fashion a result based on your date of separation. If you live together again, the doctrine of "laches" will not be of much use to you.
In the realm of property division, Pennsylvania law looks at the date of the separation as the date that you first begin to physically live apart for an extended period of time with the intent to remain separate. If you have formally filed for a divorce, the date of marital separation is the date of filing. If you and your spouse do not have a formal separation agreement, but have taken meaningful actions to separate, the date of marital separation is the first date you informally established your new living arrangements and you adhere to them.
The problem with living together while you are legally separated is generally one spouse moves out of the family home and provides financial support to pay the costs of an additional household. The courts do not want spouses maneuvering to take advantage of financial support awards in a final property division. They expect you to live apart to save expenses and to expect fairness in the final result is considered "laches," an equitable bar to relief due to the other’s party unreasonable delay. You must be mindful of the potential impact that living together may have in your pending legal separation or divorce.

Potential Advantages and Disadvantages

Potential Benefits and Drawbacks to Living Together While Legally Separated
Although the Devil may not be in the details of your divorce settlement, the real world facts and circumstances surrounding such an agreement are of critical importance when dealing with a divorce. One of the decisions you need to make is whether you will be moving out or remaining in your home during the litigation period and/or post-judgment. The window of opportunity for mediating a settlement may well be closed after you move into two separate places. Keeping this in mind, moving forward together may be the best way to explore and create a desirable outcome for both parties.
The drawbacks can be equally compelling. If you live in a very small space, the effect of their every day irritability may impact you more than if you were living in a separate home or apartment. If any substance abuse issues are present, it can be difficult to stay sober around, or with, an addicted spouse. Most significantly, if the marriage is over, is the emotional side of the situation. If you both are determined that the marriage is done with, living together can be difficult.
Overriding all this is the fact that if you are both committed to moving forward with the divorce litigation, cohabitation will prolong it. By ameliorating your schedules together, you might be able to reduce some of the costs of trial, which can be significant. When you go to Court, you pay for one lawyer. When you mediate, you pay for two. The latter scenario may have additional benefits as to settlement or trial outcomes. You are learning to communicate again. You are learning to co-parent again. After a year or two of living together, you may find you are willing to try to stay married even amidst the looming litigation. The bottom line is that if you believe that you would benefit from living with your spouse while pursuing divorce, you should give it serious consideration. It may lead you to an earlier settlement and save you thousands of dollars; or it may be an extended period of denial, adding more time, cost and emotional difficulty. Either way, knowing the pros and cons beforehand may help frame your thinking about an option that is not yet off the table.

Looking Ahead: Assessing a Long-term Solution

The first step in order to see if a couple can find a long-term solution is to get advice from counsel. Additionally, whether to live together while separated or live apart must be considered and reviewed by each party. This decision should be evaluated among other things: cost of living, emotional stability, whether there are children and the ages, do you need to leave the house due to domestic violence or other safety concerns, etc. The parties may also want to consider counseling services. There are many benefits of parties seeking counseling; for instance, some people it helps show who is the toxic one in the relationship and who is the reasonable, types of separation including legal separation and trial separations, for example , when one spouse leaves the marital residence for a period of time (months to years) in order to decide if either party wants a divorce and which party will be the one that moves out or obtains the home. Other examples include expert evaluations to determine where the home is (if you have moved into housing with friends or family members), where the money is (in individual accounts, joint accounts, investments), what the retirement packages look like, evaluations on the value of personal property, what debts are owed, etc. It is important to know what you want from a settlement perspective in order to best evaluate what to do in the meantime. Know your earning power, what debts are owed, and what the ultimate goal looks like.