By Kayla Boucher
This past week, mindless commentary during a popular morning talk show caught my attention. All of a sudden amidst my morning routine, I heard words and phrases like "solution" and "cost-effective" and "best interests of the children" andů "divorce." The host claimed there is a new phenomenon in which a married couple remains together, in almost every sense of the word, despite the fact that both desire a divorce. He referred to it as the "non-divorce" divorce. Supposedly, this trend is gaining popularity as the solution to a failed marriage.
The "non-divorce" divorce is a mutual verbal agreement between two married individuals who want to keep their marriage in tact, but fully accept that the relationship is over. The goal is to feel divorced while continuing to live together and not get a divorce. In other words, the couple does not want to go through the divorce process, but they don't want to reconcile either. They don't want to hire attorneys, file papers, argue over custody or support, lessen the time their children see either of them, or lose one-half of their financial assets. So, they decide to remain as if they are married. They live in the same family home as roommates, participate in their children's lives as they had before they wanted a divorce, and maintain/preserve the marital estate.
Of course, most couples who attempt the "non-divorce" divorce are those who have children and/or those that have been married a considerable period of time and do not feel it is beneficial to disrupt the community on an emotional or financial level. Or at least they feel that the costs of a divorce clearly overshadow the costs of remaining together-even when there is no love left.
I cannot speak to the negative psychological effects that could result from this "solution." However, I can certainly speak to the negative legal effects and problems that could arise.
First, if you never decide to separate in family law terms (that is, one party making a conscious decision that the marriage is irrevocably over and communicating the intention to end the marriage), there is never a date of separation. The "date of separation" is important in family law because it marks the end of the community. From that date there is no longer a collection of community assets or community debts-instead, a spouse's separate property and debts begin to accumulate, as they did before marriage. Your spouse will continue to be entitled to one-half of all of your property and you will be liable for one-half of your spouse's debt. Therefore, if you are both managing your finances separately without full disclosure and mutual agreement, you could be adversely affected. What's more, your spouse will continue to be entitled to all benefits they were when you were happily married, including possible rights to the family home, life insurance, devises/gifts from a will or trust, and health insurance, to name a few.
The determination of a long term marriage (which can yield indefinite spousal support) is also associated with the date of separation. For example, if your marriage is eight years in duration, and you attempt a non-divorce for 3 years, followed by a real dissolution, the court's characterization of the marriage as long term will probably be contested and require substantial litigation.
Living as financially independent roommates could also present a problem with expenses. Unless you agree to distribute both of your respective incomes in a way that benefits the community, one spouse may not have enough to support his or her lifestyle. Regardless, if you are still residing in the family home with your spouse, the courts will not grant any spousal or child support. Since you have avoided going to the courts entirely, a support award is virtually impossible anyway.)
In the same way, no child custody or visitation orders will ever be established. This means that after attempting the "non-divorce" divorce for a year or so, and after resorting to the real thing, a parent may have a hard time making a case that he or she should be the primary custodian. This is because even if one parent is the primary caregiver during the non-divorce, this fact will be hard to establish if both parents were living in the same home all the while.
For the aforementioned reasons, the non-divorce presents significant legal problems. Spouses who try this "solution" cannot be guaranteed that one spouse will not attempt to obtain a legal divorce down the road. If this occurs, a spouse will not be afforded some of the protections that a traditional divorce provides. In order to ensure that you make an educated decision, you should speak to an attorney who specializes in family law matters. He or she can point you to two potential solutions-a post-nuptial agreement or a legal separation. Both options will cost some amount of fees and time in mundane paperwork, but will allow you to live whatever lifestyle you want with protection and peace of mind.
About the author
Kayla Boucher, Law Offices of Donald P. Schweitzer,Pasadena, California, 626-683-8113