The Perils of Putting Off the Divorce

Lots of people put off getting divorced. The reasons are not hard to understand. Divorces are terrifying, expensive, mysterious, and disruptive. These are not qualities that lend themselves to enthusiasm. It is very common for people to come into my office having been separated from their spouses for long periods of time. In some instances, these separations have been going on for years.

There are some real pitfalls to this arrangement, and I'd like to share them here in the hopes it will assist you in taking action if you need to.

In order to understand the problems with delaying a divorce, you have to start with an understanding of the distinction between community and separate property. In Washington, we divide property up into "community property" (property acquired during the marriage) and "separate property" (property acquired before or after the marriage). The starting assumption in any divorce is that community property is subject to division in the divorce, and separate property stays with its current owner. This presumption can be rebutted, but it is the default where courts start.

A commonly misunderstood point is when property stops being community property. A lot of people think that everything the couple acquires is community property until a final divorce decree is entered. This is not true. When spouses stop living together and acting like a married couple, that is when the law says the parties stop acquiring community property.

In cases where parties file for divorce and move into separate residences around the same time, this distinction is fairly easy to understand. At that point, you are supporting your own household, acquiring your own debts, and so forth. Where people get surprised is these situations where there are years of living separately.

Say, for example, that you stay in the marital home and your husband goes to live in an apartment. He keeps paying the mortgage on the house even though he does not live there. What happens legally is that the money he puts towards the house after he moves out becomes a separate property interest in the house. In a divorce, that would mean that instead of just dividing the total equity of the house between the parties, he would get a certain amount of money equal to his mortgage payments after separation as his own property. This amount would not figure into the division of property in the divorce in most cases.

If the parties are estranged for six years and the husband keeps paying on the mortage, this could mean that a staggering amount of equity isn't "on the table" in terms of property division in a divorce. This realization is very jarring to people.

This same principle applies to retirement contributions. Money our hypothetical husband puts into his retirement accounts after separating is going to be considered separate property. After six years, that would be a lot of money.

The other areas where the long term separation without divorce is harmful are child support, maintenance (alimony), and child custody.

While you can, in theory, petition for back support (support for time that passed before you filed for divorce), it is extraordinarily hard to get. The Court's typical rationale is that the onus us on you to take action. If your spouse is not paying his share for the kids, there is an expectation that you will not endure this for more than a few months before seeking relief from the Court. While there is no official case law supporting this idea, the rationale I keep seeing from Judges is that you have to engage in self-help, and you should not be awarded for delay.

Maintenance (alimony) claims also get weaker the longer you delay seeking a divorce. One of the main factors courts look at when awarding alimony is the need of the party requesting it. If you have been able to make ends meet for years without receiving this payment, it is much harder to make the claim that you need that money to keep the lights on.

Custody determinations give enormous weight to what has historically been done. If you and your spouse have had a custody arrangement that you do not like, but you put up with for several years, it is going to be very hard to get the Court to enter something else unless you can come up with a compelling reason that the current arrangement is significantly harmful to the child. (It is also worth noting that the uncertainty and stress caused by the absence of a clear parenting plan can work a world of hurt on your children - that will merit its own blog post down the line.)

I cannot tell you how often I have shared all this information with clients and had them exclaim, "I wish I knew this sooner!"

Hopefully, this blog post accomplishes that goal.

I am fully sympathetic to the reasons people put off divorces. I think if you polled doctors, dentists, and accountants, they would all agree that there is a human tendency to put off things we dread. But those same professionals would probably also tell you that sometimes an unpleasant truth does not get better with age, and the best thing you can do for yourself and your loved ones is to deal with it head-on. If you know that you need to get a divorce, putting it off will not make the process better.

As always, I hope this helps.