Who Should Move Out? Planning for the Worst Times During your Best Times

Divorce during the Holidays

Have you driven a car on a highway without car insurance?

Did you wear a seatbelt the last time you were in a car?

Do you lock your doors before bedtime?

Did you buy homeowners insurance?

Do you ensure that your children have medical coverage?

These questions point to obvious answers about everyday situations that carry potentially life-altering risks, and rarely do we ever consider gambling our outcomes with the above scenarios. The same caution should apply to another life-altering situation: marriage, which brings with it the possibility of divorce.

The equivalent of a seatbelt or insurance for marriage is a prenuptial or postnuptial agreement, either of which may protect you from the “blunt force trauma” of divorce. A prenup is signed before the wedding vows. A postnup includes the same material in the contract, except that it is signed after the wedding vows. The difference between the two documents rests in the timing of the signatures.

In popular culture, the prenup or postnup directs outcomes for financial holdings and tangible property, such as homes and cars. This view of nuptial agreements is accurate, as prenups and postnups cover these issues; however, this view is incredibly limited. Nuptial agreements can also help couples to navigate the most emotionally painful and cognitively tricky time in a troubled relationship. A prenup or postnup can address behaviors during the most volatile period of separation.

If you and your spouse decide to consider ending your marriage, you might not rush into divorce right away, but you both will likely opt to pursue separation. One of you will leave the home that you share together.

Who leaves?

At JustPrenups, we rely on decades of experience to examine each spouse’s unique situation so that this question is already answered and finalized in writing.

Our template for postnups and prenups addresses other questions that are context-specific so that you don’t have worry about such issues during your most conflicted times:

  1. Who has a convenient new place readily available, such as a nearby parent’s or sibling’s home? Is this the best option for a move-out scenario, or should other options be considered or developed?
  2. Who bears most of the burden for childcare and/or elder care, and how should the spouses divide this labor during a break-up?
  3. Would dependents remain in the marital home, or leave with the relocating spouse?
  4. Does either spouse have health conditions that affect one’s ability to relocate?
  5. Is one spouse dependent on the other for financial support? Should there be an agreement about financial support while the spouses live separately before the divorce or reconciliation?
  6. What happens to any jointly held bank accounts and credit cards that either spouse may need for living costs?
  7. Should the partners be obligated to undergo several marital therapy sessions before proceeding with a divorce attorney?

Our contracts settle additional complications that the process of separation introduces:

  1. What is the relocating person allowed to take from the marital home? The moving-out process can raise concerns about who owns specific personal property. For example, what if the remaining spouse owns the four-figure, luxury space heater, but the relocating spouse packed it?
  2. Should marital assets pay for a new place, its utilities, and its other requirements (e.g., needing sheets, towels, dishes, cleaning products, etc.) while you two decide whether to proceed with divorce or whether to reconcile?
  3. Does the relocating spouse pay for utilities at the marital home? Are there complications to be sorted if a partner’s name is on the utility bills at both locations? Remember that failure to pay any bill registered in your name will result in damage to your credit score.
  4. Should the couple invest in separate phone plans during this time? Are there other jointly held services that should be terminated?
  5. How would both of you feel about changing the locks to the marital home after a spouse leaves, or at all? Can a remaining spouse change the passwords to the security features?
  6. How long does the relocating spouse have to move out completely if you decide on divorce?
  7. Must either spouse surrender certain items to the other before departure or before filing for divorce, such as a car or technology?
  8. What are the boundaries for the relocated spouse regarding the marital home during a separation if you have not decided whether to proceed with divorce? Does one spouse maintain exclusive use of the marital home during this time, or do you both retain access, but on a schedule?
  9. Are either of you allowed to date once you are living in separate residences?
  10. If you own the home jointly, does the relocating spouse still have access to perform or help with upkeep to retain the value of the home? Is the relocating spouse required to contribute financially for such upkeep, such as cleaning or landscaping or other necessary services, such as plumbing and roof repair?
  11. Should you file taxes separately, depending on how long the period of living apart lasts?
  12. When is a partner allowed to change relationship status descriptors on social media? What can be said on social media, if anything at all, during the separation period prior to filing for divorce?

Even though the partners decided upon one moving out, the marriage itself may or may not be over. The marriage may be rehabbed through time apart, or it may become irretrievably broken. Your behavior throughout this time determines much of the outcome, including whether the couple considers reconciliation.

Respectful, patient consideration of the other’s needs is key here. Assumptions about the other person must be left at the door, no matter how long you have known each other. Can toxicity in your relationship be overcome? Are you both allowed to be yourselves in a way that doesn’t negate the other person? Neither of you can rush the process of building new communication methods and creating new boundaries for your behaviors, and many turn to the guidance of a therapist, a coach, a religious leader, or some trusted third party.

When touchy logistical decisions are already made, there is less opportunity to fight over them. Our prenuptial and postnuptial agreements deal with the planning above and more so that you and your partner can invest energy on deciding your futures together or apart. The lists above are not exhaustive, as your contract is customized to you as a couple. The separation period in a relationship is delicate, and that’s why JustPrenups seeks to be as concrete as possible. The “rules of engagement” are written in your best times so that your troubled times do not needlessly introduce more harm.

Warning: All posts on this website and its partner website, the DADvocacy™ Law Firm, contain general information about legal matters for broad educational purposes only. This information is not legal advice and should not be treated as such. This blog post does not create any attorney-client relationship between the reader and JustPrenups.com or DADvocacy™ Law Firm.