When you got married, you did so with the intention of staying with your spouse for the long haul. But unfortunately, life can take its own course and things might not work out.
Still, deciding to separate or divorce is never an easy choice to make—especially with kids in the picture. That's why it's important to do it right. Lawyers say a lot of parents make several mistakes when breaking up, often because they rush it. “The biggest problem people face when separating is that they act quickly, which can unknowingly create more problems down the road if they take the wrong steps,” says Barry Nussbaum, senior lawyer at Nussbaum Law. “Going through a divorce is difficult enough–the last thing you need is to do something wrong now that you’ll regret later.”
Here are the five most common mistakes couples make when getting separated.
You or your partner might feel eager to move out once you've made the decision to separate, but it’s actually better to stay put—move into a spare room or basement, if necessary—until you have a separation agreement or court order in place, particularly if you are expecting to make a claim for joint custody. “Leaving puts your position in jeopardy since the courts usually strive to maintain a status quo,” says Nussbaum, meaning that if you leave and you are only seeing your children on weekends and the children are doing well, courts may be reluctant to change this arrangement as it relates to parenting time and custody.
As hard as it is, you need to put hurt, anger and other negative emotions aside, especially when children are involved. Acting out of spite by refusing visitation, tossing your partner’s belongings or intentionally preventing your kids from bonding with your spouse’s new partner will only reflect poorly on you in front of a judge. Nussbaum advises stepping back from the situation and thinking about how your actions will affect your case long term, recognizing that courts actually encourage people to find new partners and expect everyone to get along.
It sounds like a scene out of a movie, but it's actually a pretty common scenario: Angry and feeling jilted, one half of a couple kicks the other half out, then sells their car or empties the bank account for a personal shopping spree. Don't do it, says Nussbaum, or you could end up owing half of it back. “You may think those new purchases are safe because they’re your personal belongings, but the court may see your actions as suspicious and decide you acted unreasonably,” he says. You will likely be ordered to make an equalization payment at a later date.
Tempting as it may be, avoid airing any personal thoughts about your separation online. Name calling or posting damaging statements about your spouse can be “a nail in the coffin in obtaining joint custody,” Nussbaum says. Even sending nasty texts could work against you. “The court is a creature of the paper trail, and once it’s out there, you won’t be able to get it back, which could negatively impact your case.”
If you plan to take your children on vacation during a separation, you need your spouse’s consent. Don't make the mistake of whisking them away without asking, says Nussbaum. Doing so, "can ultimately have repercussions on who the court will consider to be more child focused."
If you do intend to ask permission, don't wait until the last minute. Nussbaum says too many people do this—and if your spouse says no, you won’t be able to take the matter to court, because it doesn’t qualify as a legal test of “urgency.”
This list isn't exhaustive—there are plenty of best practices around getting separated. And with the stakes as high as they are for parents, it's essential to get good advice early in the game. “Most importantly, whether you’re thinking about separating or newly separated, the first step is to seek legal advice from an experienced lawyer who specializes in family law and will have the latest information from the courts at their fingertips,” he says. “This isn’t the time to be hasty or do what comes naturally. You need to think and strategize before you act.”