In some respects, marriage is forever – or close to it. If yours wasn't made in heaven and you want to walk away from it, the law typically makes sure you meet certain responsibilities. Even after a divorce, you continue to have certain financial obligations, and they must be addressed when you and your spouse separate as well.
If you have children, both you and your spouse are responsible for supporting them financially regardless of the status of your marriage. If you move into separate households, a court order can legally obligate you to pay child support, but if there's no court order, this doesn't mean you don't have to support your children. If you don't contribute voluntarily, your spouse can ask the court for a child support order even without filing for divorce or formalizing your separation.
If you and your spouse incurred debt together, these creditors won't go away because your marriage is ending. If you have joint credit card accounts, both of you are on the hook contractually with the lender. You can close the accounts, but the balances will still require ongoing payments, and you're both obligated to make them.
Most states draw a line between these marital debts and those you might incur after the date of your separation. After separation, you're usually solely responsible for new debts you take on in your own name. An exception to this rule sometimes exists, however, if the debt is incurred for necessities for your children, your spouse or yourself. Some courts consider such debts to be joint obligations. Courts also don't want to see insurance policies lapse, just because neither spouse wants to pay the premiums. In some states, such as New Jersey, the law mandates that you cannot modify policies or cause them to be canceled within 90 days of filing for divorce – your separation period. This includes health, life, automobile and homeowners insurance.
If you earn a great deal more than your spouse, it's likely that you'll have to pay some measure of support during your separation period. You can do so voluntarily, such as by contributing to the mortgage or rent on the marital home after you move out, but if you don't do so, your spouse can involve the court. Most courts will order temporary alimony in this situation until you get around to divorcing and your property and assets are divided between you. A court might also assign certain debts, such as the mortgage, to you for payment during this period. This prevents a significant marital asset – your home – from being lost to foreclosure. A temporary order may or may not carry over to permanent alimony after you divorce, depending on your personal circumstances.
Agreements and Court Orders
Ideally, you and your spouse will memorialize your agreement regarding financial issues in a written agreement when you separate. If you do, this separation agreement becomes a binding contract when you both sign it. When and if you eventually divorce, the court can carry its terms over into a divorce decree or judgment. If your relationship isn't amicable enough that you can negotiate an agreement, this doesn't mean the court can't enter orders regarding the financial aspects of your separation. Some states include provisions in their legislative codes for legal separation. For example, you or your spouse can file a petition for a "limited divorce" with the court. This is a form of legal separation that allows the court to make orders regarding bill payment, support and even marital property. In states that don't recognize any kind of court-ordered separation, either spouse can file for divorce instead so the court can issue immediate orders pending the final outcome.
- The Baldwin Law Firm: What You Need to Know About Separation and Divorce
- HG.org: What You Need to Know About Separation Agreements
- The People's Law Library of Maryland: Overview of Divorce in Maryland
- Mowery, Youell & Galeano: Temporary Support Pending Divorce
- DADSDivorce: Do You Have to Pay Child Support During the Separation Before Divorce?
- Judicial Council of California: Section 6.03 Debts Incurred After Separation
- New Jersey Courts: Rule 5:4 Process, Pleadings, Appearances
- Bankrate.com: Close Credit Card Accounts in Divorce
Beverly Bird has been writing professionally for over 30 years. She is also a paralegal, specializing in areas of personal finance, bankruptcy and estate law. She writes as the tax expert for The Balance.