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Separated Spouses: What Rights Do Separated Spouses Have to a Jointly-Owned Home?

Legal separation is a process of its own. While it is often a precursor to divorce, it is not a guarantee that divorce will happen. Some people will remain legally separated indefinitely. Others will eventually reconcile. In any case, what happens in the meantime is often a bit confusing to the couples involved. After all, if you’re legally separated, is your stuff separated, too? What about the house that you both own (or have a mortgage on) and live in?

There are a lot of unknowns. Fortunately, you can hire a divorce and family lawyer to help you get through your legal separation and help you understand what happens with all of your property and the rest of your lives.

One of the biggest questions lawyers get about separation is what happens to the marital home. Ultimately, that’s going to be determined on a case-by-case basis in most states.

Jointly-Owned Property – Real Estate and Other Property

So what happens to real estate and other property when you’re separated? Well, that depends on the terms of your separation. In many cases, people will only draw up an agreement that covers the necessary separation of property and assets relevant to the split at the current time. For example, they might create terms to split the daily bank account, but determine that the property they own can remain in their shared names for the time being.

If there’s a shared home involved, the judge may award it to one spouse because they keep the kids, or because they can afford the mortgage in some cases. Couples can choose to share the home and split time living there with the kids, which some couples do for minimal disruption, but this can become a challenge.

The important thing is that if it is deemed that one spouse gets possession of the home during the separation, the other spouse does not have the right to enter without their notice or permission. That would be considered trespassing and would violate the terms of the separation agreement.

Many times, spouses will leave big property like real estate or long-term financial investments alone during a separation until they figure out what’s going to happen in the future (divorce or reconciliation). Cashing in the assets and dividing all the “stuff” preemptively can cost you more in the long run.

You need to make sure that you spell out what’s happening to everything, including intangible property. Intangible property refers to things like financial assets—investment accounts, savings accounts, IRAs, CDs—any asset, debt, or “property” that you have that you can’t actually hold in your hand is usually considered intangible.

What happens to joint investment accounts in legal separation? That’s a good question—and the answer is that it depends. Usually, if the couple has worked out a separation agreement that outlines the terms of their property division, the courts will approve that for the duration of the separation.

In some instances, courts may advise that couples “freeze” or don’t touch long-term assets or joint assets that can be divided at a later time if they should divorce. This allows the assets to keep growing in their investment potential while ensuring that one spouse doesn’t drain the accounts or close the investments, etc.

Children and Stepchildren in Legal Separation Agreements

In most cases of legal separation involving stepchildren, those children will automatically remain with their biological parents. The legal decision-making ability and physical parenting time (custody) for children that are shared by the spouses will have to be decided by both parents. If they cannot agree on terms, the court will determine what to do based on the best interests of the children.

For example, if a blended family has two children that are biologically related to both parents and two older children that belong to the father, the older children would usually remain with their father while the younger ones could be put into any number of custody arrangements based on what is best for the least disruption to their lifestyle and with their best interests in mind.

What About the Pets?

With all of the decisions and legal matters surrounding separation, some people might not even think about the pets. However, they’re part of the family and they’re also going to be a part of the legal separation. As with all elements of the separation, it’s best if you two can agree on an arrangement that works for everyone involved, including the best interests of the pets.

And remember, getting rid of pets is not in their best interest. It’s seldom the “right” decision for the pet, no matter how well it seems to suit the needs of the human(s) involved. It’s best to let the pet stay in the home and environment they’re most comfortable in, but if that’s not possible, they should be with whoever can give them the time and attention that they need.

Again, if you can’t decide what to do, family court judges will be more than happy to do the dirty work. Just remember, you might not like the outcome if you leave it up to the judge.

The Bottom Line

There’s a lot to deal with when you’re facing legal separation. It might seem like the easier option to divorce, and while it can be, it also has its own considerations and hurdles to overcome. If you want to make sure that you get possession of your home or get a custody arrangement that is in the best interests of your children during the separation, it’s best to hire a divorce lawyer to assist you in the process.

An experienced divorce lawyer will help you navigate the legal separation process, including figuring out which terms work best for everyone involved, and ensuring that you get a fair outcome. With so much to consider, it’s best to have someone with experience and expertise on your side. To learn more, contact the Modern Law team today.

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