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November 2011 / Bronx/​Riverdale Family / Brooklyn Family / Long Island Family / Manhattan Family / Queens Family / Staten Island Family

Too close for comfort

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The marriage is clearly over, but you and your spouse continue to share the marital home. Being together is often stressful and unpleasant; you wish that one of you could leave while the divorce process unfolds, but such a change seems impossible. But is it? While certain couples don’t have a choice and must continue to share the home, others — those who remain together because they are afraid of the legal consequences of leaving — may be able to alter their situations, if they know how, and are willing to work together to reach an agreement.

Are you afraid that leaving the home might weaken a claim to ultimately owning it? Or, that moving out would affect how much time you would later be able to spend with your children?

If such concerns are keeping you together, relief may be available.

“I definitely agree that many people postpone separation too long because of the fear that the party who leaves the house will be forfeiting some rights or setting some ‘precedent,’ ” says Ron Ousky, a pioneer in the area of Collaborative Law (where each spouse has an attorney, as in a more “traditional” divorce, but the spouses and their lawyers agree to stay out of court) and coauthor of the book “The Collaborative Way to Divorce.”

What can be done to allow someone to leave while protecting his rights? Consider reaching agreements with your spouse, agreements providing the one who would move with assurances that rights will not be compromised.

For instance, you might agree that having one of you move out is a mutual decision, being undertaken for the good of both spouses and the children, and that the person leaving will not suffer any legal consequences due to the departure. It will not affect any rights to the marital home, and cannot be used to penalize the one who moves when decisions are made about how much time children will spend at each parent’s home.

You might add words to the effect that, “We each acknowledge that the other is a good parent, and that his continued involvement is very important for the development and upbringing of our children.”

Consider using a mediator, who can help you reach agreements, and attorneys, who can review and write them, helping to insure that your rights are protected. At the very least, agreements should be in writing and notarized.

Ousky says that such an approach provides “a way in which [couples] can be clear about their intentions so that the only ‘precedent’ that is being set is one of mutual concern for the wellbeing of the family.”

“[T]he decisions that [couples] make early in the divorce (including separation decisions), can set the tone for the entire divorce, as well as their post-divorce life. It is easy for families to back into a messy divorce, because someone acts out of fear. If [they are able] to handle the separation decision in a civil and productive manner, it will go a long way toward building trust and setting the stage for many other agreements,” he says.

Tell the children?

If a parent is about to move out, yes! Children need to be told what is going to happen, especially about events that concern them — who they will be with, and when, for starters. Emphasize that you love your children and will care for them, and that the separation is a decision made by the grown-ups; that the children did nothing to cause it — and cannot change it. Don’t speak badly of the other parent; it won’t help you, but it will hurt your kids.

Disclaimer: All material in this column is for informational purposes only and does not constitute legal advice. Discussing your particular case and circumstances with a legal professional before making important decisions is strongly encouraged to safeguard your rights.

New York City and Long Island-based divorce mediator and collaborative divorce lawyer Lee Chabin, Esq, helps clients end their relationships respectfully and without going to court. Contact him at lee_chabin@lc-mediate.com or (718) 229-6149, or go to lc-mediate.com/home.

Updated 4:38 pm, November 23, 2011
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Reader feedback

Lisa L from Bayside says:
I enjoy reading your columns. I have learned a lot. I wish I had know about divorce mediation earlier,it would have saved me money & a lot of heartache
Nov. 23, 2011, 2:14 pm
Brett Ward from Manhattan says:
I am an attorney in NYC who specializes in matrimonial matters. I think people need to be very careful before leaving the family's home, even with an agreement in place. I am not saying that an agreement is not a viable option, but it comes with substantial risks. For example, in custody cases in New York, private agreements between the parties are not binding on a court (even if the specifics of custody are completely resolved). So, if before a divorce action is even filed, a couple signs an agreement that specifically reserves all rights to the marital home and acknowledges the role of the "moving out" party in the children's lives, this stipulation might not be worth the paper upon which it is written. Certainly, if somebody feels they must move out, there is no reason not to sign such an agreement in case it can be helpful. But, I would make sure a client of mine understood that the agreement guarantees them nothing.
Nov. 29, 2011, 11:21 am

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