When two spouses separate, each party has unique rights and obligations relating to child support, spousal support, access to joint property, and the freedom to sell (or spend) joint assets. However, these rights and obligations are unenforceable without court intervention. Before a judge can issue an order to protect your rights, you’ll need to hire an attorney and file a lawsuit against your husband.
Whether you file for legal separation or divorce, the judge can issue court orders to protect you and your interests, as well as specific orders to make your husband do (or stop doing) certain things while the case is pending (e.g. to stop coming over to the house whenever he pleases).
If you and your husband recently split up and are now considering getting a divorce, please contact our family law team. Give us a call at (480) 467-4348 or fill out a form online to setup a consultation and we will determine what the best strategy is to start moving you and your family forward.
If your husband is the sole or primary provider for your family, you may have a right to temporary financial support until the legal separation or divorce is finalized. The legal term for this is “pendente lite” financial support, which means the order is only valid until the terms of your legal separation or divorce are finalized. Receiving temporary financial support is no guarantee that you will receive spousal support (alimony) after the legal separation or divorce is finalized, and the amount you receive for temporary support will almost certainly be different than the amount of spousal support you receive if alimony is approved.
Your temporary financial support order may include enough income to cover household expenses such as the mortgage and utilities, or the judge may issue a separate order that your husband help pay these expenses. In most cases, the judge will split household expenses between both spouses based on their income, with the goal of simply ensuring major assets such as the home are intact until the judge can divide them with a final decree.
A child’s right to reasonable support is considered a parent’s primary financial obligation, so issuing a child support order is often one of the court’s first steps. In fact, the court may issue a child support order as soon as you request it, even if you have yet to file for legal separation or divorce.
If there is a dispute over custody, the court may issue a temporary custody order until a permanent solution is finalized in the legal separation or divorce decree. The courts typically default to leaving the children with the stay-at-home home parent for the time being, which is statistically the mother, but that’s not always the case. The final decision will be in favor of the parent who can best serve the children’s needs and well-being.
Neither party can sell valuable property like real estate or vehicles while the legal separation or divorce case is pending. In most states, the court will issue an automatic injunction against disposing of property as soon as you file for legal separation or divorce. In other cases, you may need to file a Notice of Lis Pendens against the property with the county clerk. A Notice of Lis Pendens notifies potential buyers that a lawsuit is pending against the property, and prevents either party from selling the property without court permission.
Sometimes, when the separation is less than amicable, it may be necessary to request a court order to stop a spouse from accessing property. For example, if you live at home with the children and your husband moved out, you may need to prevent him from entering the home at will. If your husband took the family vehicle and you cannot drive the children to school, the court may order that you take possession of the vehicle for the time being. These are intended to be temporary orders to preserve the peace until a permanent solution is reached with the final separation or divorce order.
Protection Against Leaving the State
It’s not unusual for a separated spouse to move to another state, whether it’s in search of another job or to live with family members. While both spouses are free to leave the state, some states can issue a court order to prevent either parent from removing the children from the state until the legal separation or divorce is finalized. The same court order can be used to prevent a spouse from removing the other spouse and/or the children from health insurance policies.
In severe cases, you may need to request a restraining order against your spouse to protect yourself and/or your children. While the family court can issue orders to stop your husband from coming to the house or taking the family car, it can’t issue a restraining order, as that’s a criminal matter. To initiate a restraining order, you’ll need to call the police and file a criminal suit separate from the legal separation or divorce case.
Keep in mind that while you have rights and privileges that should be protected, your husband also has rights that cannot be infringed. Both spouses have the right to legal decision-making, visitation, and communication with the children, and either party’s attempt to prevent the other spouse from enjoying these rights is unlawful. If you are genuinely concerned that your spouse is a danger to the children and his visitation or communication is not in the best interests of the children, you’ll need to seek a temporary injunction until the court can issue a final custody order that dictates parenting time and legal decision-making.
What happens if you do not file a lawsuit against your husband?
Remember—you have legal rights as a separated spouse, but these rights cannot be enforced until the court is involved and the judge issues a court order. You can work with the local police to issue a restraining order without filing for legal separation or divorce, but that’s a temporary solution. Even if you are unsure whether you actually want to legally separate or divorce, you’ll need to file a lawsuit against your husband to enforce your rights as a separated spouse. You can attempt to reach a civil agreement privately with your attorney or through marital counseling, but these solutions are non-binding without a court order or a legal contract.
Call the Family Law Team at (480) 467-4348 to discuss your case today.