Recently here on our blog we took the time to cover the differences between divorce and separation. In this post, we maintained it was possible to remain separated for as long as both parties wished.
But is it advisable to remain separated for a long time?
How long should you wait before giving in and suing for a full, legal divorce?
Separation is not always economically advantageous.
As Philadelphia family lawyers, we often advise our clients to at least lock in a formal separation agreement overseen and drafted by qualified attorneys. This protects whatever short-term agreement you and your spouse come to, rendering it enforceable. It also helps to create agreements which may have some relationship to what the courts may eventually decide upon during your divorce.
However, many separated couples don’t involve attorneys at this stage. They come up with informal, voluntary agreements instead. And the longest-lasting separations tend to involve parties who honor those agreements…which can cause some loss later, unless both parties are very savvy about family law.
Middleton vs. Middleton
Here’s a case which helps to demonstrate what we mean. Middleton v. Middleton involves a couple that separated for 15 years before seeking to finalize their divorce.
During this time, per a bifurcation agreement, Mr. Middleton voluntarily paid the first and second mortgages on the marital home. He also paid other expenses, as well as spousal and child support, in an amount that totaled $3,000 per month.
Later, he wanted the courts to credit some of this money back to him when determining the equitable distribution of marital property. Instead, his ex was awarded half the value of the marital home and $2,000 in spousal support for six more months to help the wife adjust financially to a new lifestyle, and to assist her with the marketing and sale of the home.
From the case:
“Husband maintains these payments were ‘on account’ and therefore should be credited against the wife’s distributive share. Wife argues Husband agreed to make these generous payments to support wife and child until the court resolved the economic issues and there is nothing in the stipulation to indicate that Husband would be credited upon resolution of economic claims. We agree with Wife. Voluntary payment from Husband’s own resources will not be credited at equal distribution..In fact, and as the trial court apparently realized upon reconsideration, if Husband were credited with fifteen years of these payments, $78,224, and also credited with one-half the rental value of the marital residence, $104,105.00, this would wipe out all the wife’s share of the marital estate.”
The Superior Court of Pennsylvania calls out the amount of time it took for the couple to finalize their divorce. They also noted all parties “are free to enter into agreements they may regret.”
Note that the division of marital property is not the same issue as spousal support. Note, as well, that in either calculation courts consider the lifestyle both parties have become accustomed to. If they can ease both parties into a new, downsized lifestyle without allowing either party to descend into destitution they will usually do so. The underlying assumption is both parties contributed to the marriage, so neither party should suffer unduly for the dissolution of the marriage.
Fair or unfair? Doesn’t matter…
The purpose of this post is not to analyze whether either Middleton got justice in this case. It’s simply to communicate the following principles:
- Waiting too long to finalize your divorce can cause the more economically stable party to overpay during the course informal or even formal separation agreements.
- The courts are unlikely to retroactively credit those overpayments.
- Therefore, it may be advantageous to the economically stable partner in particular to seek economic resolution and a full divorce through the courts in a timely fashion. Few couples wait 15 years, but the lost money can add up.
Spouse wants to keep avoiding the issue? You don’t have to put up with it. You can sue for a no-fault divorce at any time.
Unsure what to do? Visit with the team here at Sadek and Cooper. Our free consultation can help you find out what your most advantageous next step will be. Call now to set up your appointment.