Separate maintenance is the action one files with the family court when one is no longer living with one’s spouse but one doesn’t yet have grounds for divorce. This occurs when one doesn’t have fault grounds for divorce (physical cruelty; habitual intoxication; adultery) but hasn’t been separated for the one-year period that allows for a no fault divorce.
It’s not necessary to file for separate maintenance before one files for divorce. For folks willing and able to wait a year after separating before seeking to establish a post-separation status quo, filing a separate maintenance action is an option, not a requirement. So who should file for separate maintenance? I counsel clients and potential clients to file in the following circumstances:
1) One is concerned one’s spouse is accumulating substantial debt
The family court ultimately has authority to equitably divide marital debts that exist on the date of filing. Debts one’s spouse accumulated between the date of separation and the date of filing are generally marital debts and the court can require the other spouse to pay a portion of them. If one is concerned that one’s spouse will incur substantial debt after separating, it is advisable to file immediately to prevent oneself from being potentially liable for these debts.
2) One is concerned one’s spouse is wasting or hiding assets
As with debts, the family court only has authority to equitably divide the assets that exist on the date of filing. Assets that are destroyed or disposed of between the date of separation and the date of filing are not subject to the court’s equitable distribution jurisdiction. While hidden assets are subject to equitable distribution, one first needs to prove these assets still exist on the date of filing. If one can’t prove that, the court can’t divide them. Thus, if one is concerned one’s spouse will dispose of or destroy assets after the separation, it is advisable to file immediately.
3) One is accumulating assets that one wishes not to share with one’s spouse
Assets acquired after the date of filing but before the divorce are not marital assets; assets acquired after separation but before the date of filing are. Even if spouses are separated, ongoing income, bonuses and pension benefits remain subject to equitable distribution if neither party has filed for divorce or separate maintenance. Thus, it is advisable to file for separate maintenance to protect post-separation income streams and assets from becoming subject to equitable distribution.
4) One needs the family court’s assistance to resolve temporary issues
To have the family court issue any orders on child custody, visitation, child support, spousal support, or the temporary division of assets and debts, one needs to file a marital dissolution action. If one doesn’t have grounds for divorce, the action will be one for separate maintenance. If spouses cannot cooperate sufficiently to resolve these issues without court intervention, filing a separate maintenance action is the necessary first step to obtaining a court order setting forth the parties’ temporary rights and responsibilities.
5) One has a formal separation agreement and doesn’t want to wait for a year’s separation to have that agreement be made a court order
It is easier to repudiate a separation agreement that has not been made a court order than to modify a separation agreement that has. If one has a formal separation agreement and is worried the other spouse will repudiate it or not obey it, filing a separate maintenance action and obtaining court approval of the agreement can be worth the expense of having to file a separate maintenance action and then a subsequent action for no-fault divorce.
Not every separating couple needs to file a separate maintenance action. For those who get along and trust each other on issues of assets, debts, support and children, the savings of not having to file one action for separate maintenance and a subsequent one for divorce may outweigh the risks of not doing so. This may also be true for spouses in short marriages with no children and minimal assets and debts. However spouses fitting into one of the five categories above are safer filing for divorce if grounds exist and separate maintenance if grounds don’t as soon as they separate.
