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Excerpt

Your Divorce Advisor

Excerpt from Chapter 4
Steps to Success: Taking Each Hill One at a Time

The Mandatory Waiting Period
One of the most confusing and least understood parts of the legal process is the mandatory waiting period: what happens and what is the timing?

Most states specify a waiting period of between three and twelve months from the time you file the papers until your divorce can be finalized. During this waiting period your lawyer, if you have one, will be pursuing financial discovery, that is, assembling all of the financial documents that are relevant to your case (in addition to the documents you've already provided). The discovery process is discussed in Chapter 5, Evidence and Pretrial Procedures. Your lawyer or mediator should also be helping you to formulate a settlement proposal for resolving your case. By understanding the settlement process, you can help to guide your case to a successful ending.


Your Divorce Advisor

Staying In Or Leaving The House
Many states permit couples to live together during their divorce. Other states, such as New York, require a physical separation of a specific duration (New York is one year, most other states are three months to a year) before a divorce can be granted. All states permit separation during the divorce process. The question is whether a physical separation at this time makes sense for your family.

Consider:

  • Your finances: will you and your spouse be able to support two households right away?
  • The stability of your children: where will they live, and how will they see each parent?
  • Can you agree on who stays in the marital residence, or will this decision require court intervention?
  • Is there a potential for domestic violence, especially now that tensions are escalated?
  • Will both of you have adequate transportation and furnishings; e.g., are you sharing an automobile?
The most frequently asked legal question is Is there a legal advantage to separating or staying in the same household? The answer to this question varies widely across jurisdictions and lawyers. Many lawyers subscribe to the old adage of "possession is nine points of the law" and instruct their clients that if they hope to live in the house after the divorce is finalized, they should not move out of the house during the divorce. Similarly, if the client wishes to live with the children, the client should not move out without them. Even though orders are made during the time the divorce case is pending are supposedly "without prejudice", meaning that the court has the authority to change the orders at any time, lawyers who subscribe to the "possession is nine points of the law" school of thought believe otherwise. While no statistics are available to support or refute this theory, imagine such a scenario as presented to a judge: if the arrangement has stabilized the children and seems to be working, why risk a change?

There are psychological and practical advantages and disadvantages to staying in the same house. The advantages include saving money, having time to organize your lives for easier separation, having time to talk to your children, and providing support to each other on a daily basis. This way of living requires a friendly situation at best, or one in which tensions are squelched for your own or your children's benefit. If your situation is not civil, however, it is difficult and painful to face each other every day and manage the "good face" that such arrangements require. Staying in a tension-filled living situation can exacerbate stress and magnify the ways in which spouses annoy and frustrate each other.


Your Divorce Advisor Certain situations support separating sooner rather than later. If your spouse is continuously putting you down, berating you, abusing you, or manipulating you into being frightened, meek, or withdrawn from family and friends, then staying in the house is likely to have negative consequences for your children and for you. If your spouse is involved in illegal activities, or is self-destructive, such as a compulsive gambler or a cheat, then staying can have only negative consequences unless you both get professional help. If your spouse has a disabling mental illness that causes him or her to act erratically in ways that could put you or your children in danger, that is an unsettling but potentially necessary reason for leaving. Finally, if your spouse is hurting your children in any way, then you must leave immediately, even if you are not fully prepared emotionally to do so.

Separating might be temporary. Sometimes just taking this action breaks old patterns like taking each other for granted. It introduces fear, and provides an opportunity to experience what life will be like without your spouse. Is it relieving, barely noticed, or does it compel you to rethink all of your reasons for leaving? If you separate, you must stick with it long enough to pass through the immediate aftermath—the loneliness, demands, threats, promises for change, and bouts of intimacy that wreak havoc in the early separation period.

Ellen and Harry lived in the same house during their divorce process. Harry set up a bedroom in the basement, and the children moved freely between the two floors on which their parents lived. They each planned to stay out of the home on alternating evenings, so that they did not interact except when the children were asleep. Despite this plan, mounting tensions during the legal process were taking their toll, especially on Harry. He felt he did not have a real home, and that the children did not respect his being "banished" to the basement. Harry reported feeling depressed and anxious, to the point that he was not functioning successfully in the workplace. He wondered if the money he was saving was worth it, and whether being with his children in this way ultimately undermined his relationship with them.