Separation v divorce?

[BigBoysDontCry]

DH and I now agreed to separate (still living together but that's another story..)

I'm late 50s, he's early 60s. 2 adult children not yet financially independent. Neither of us interested in a new partner, both just want to protect assets as much as possible for DC.

We are both reasonable people in terms of finances, we just want to live separate lives now.

What would be the advantage or disadvantage of divorce over separation?

If either of you were to need care, and still married, your money could be used to pay for it, and vice versa.

Thanks. Good point! A counterpoint might be that in the event of death of one of us, the other wouldn't get a spouses pension from work schemes.

Lots to consider I guess.

Surely you would need a separation agreement for the financial aspects if you were to separate and not divorce. This would stipulate who gets what and any on-going shared financial commitments. If you don’t have one of these, and you stay living in the same house, and expect to get your spouses pension, then most people will assume you are still married.
That might be fine just now but what happens when one of you meets someone else or wants to move into their own space? Or decides they don’t want to pay x, y or z because you are not living together properly or whatever. There needs to be some agreement about the distribution of assets.
Whichever way you go about it, a formal separation agreement or a divorce will cost money, so that cannot really be avoided. Without either of these things, you still have the commitments and joint ties of marriage, however separate your lives.

Thanks for the reply. We have no intention of living together as an ongoing thing. I'm just getting money together to buy him out and then he'll find something else to buy.

We live in a university town with very little rental available and it made no sense to be paying out rent anyway when we can manage to live civilly in the meantime.

I guess we do need something formal re the splitting if assets so some sort of lawyer/specialist will be required.

We are both reasonable and have no wish to see either of us in a poor situation. Our pensions are roughly equal and same with cars so the main thing is really the house.

We are both keen to protect any assets at our deaths for our DC. At least one of which is unlikely to be financially independent. For various reasons I know for a fact that I will not have a future partner. H says he won't either but I cannot rule that out to be fair.

I really need to look a lot more into this but it's looking like divorce might be the better option.

Thanks again.

As you can’t be sure he won’t marry again, and therefore give half of all of his assets to the new wife, I’d go for divorce and get your assets locked down for the kids.

Yes I agree, he says he has no intention and I do believe that but he is much more "needy" than me so who knows 🤷‍♀️

I'm looking forward to being on my own and have no issue if he finds someone else per se, but I do want to protect the DC.

I think it also partly depends where you are and how old your children are.
if you are in Scotland, you need to agree the financial separation and the child arrangements (if the children are under 16) prior to divorce and you need to be separated for a year anyway before you can apply for divorce. This is designed to give you time to re-consider whether you want to divorce. So in effect, you need the financial separation before you can divorce anyway (and the basis is 50/50 of all assets and debts). The date of separation is when you split up (ie if you have agreed that now, it is today or whenever last week or whatever the relevant date is).
I am not sure entirely how it works in England, except there is not the need to agree the child arrangements and the finances are more negotiable.
If you are going to buy him out, my experience in Scotland was that he does need to sign a document that he is giving up his rights to the marital home before you can do that.
The problem is that as soon as you involve lawyers, it does become more adversarial and expensive, so remember that mediation can help with getting the details agreed.
Also, playing devil’s advocate here slightly, neither of you want new partners and you want space from him, you could just live apart and see how things go? For as long as you did that, the flat would be half yours and the house half his, and you would agree expenses between yourselves. And just stay married and see what you think in a year?

I am in Scotland and DC are both early twenties. Youngest still in uni.

We technically decided to split over a year ago but didn't do anything or tell anyone and let it drift. Came to a head again in the summer and things have been said that can't be unsaid and there is no going back. I don't want to spend the rest of my life with him. We've told DC and I've told all my family and friends. I don't think he has but that's down to him. I've taken my rings off.

I believe that much of it is down to his mental health, the best period of our relationship was when he was on anti depressants. He came off them and says he's never going back on them which is his choice but I don't have to live with that. He says it's nothing to do with that to which I've said OK so that changes nothing for me then 🤷‍♀️

On a day to day basis we can get on, we'll still take DC out for a meal together etc and when split we'll still attend graduation/family things together.

He's thinking of moving a few hours away and that's fine and I was thinking like you said about just owning both properties between us but then does that make one a 2nd home and liable to double council tax?

We are not going to get back together again though and DC want to stay with me in the meantime so I can't really sell up. To buy something slightly smaller would be a waste of money and energy.

We have no debts, house/contents, pensions/savings and cars are our assets.

Yes I wondered if you were also in Scotland as my DD is at university in a small town where the few rentals go quickly (and no doubt the student population contributes to the difficulties of getting places for local people).

I think if you own both properties between you then you are also liable for capital gains tax on the second property if you sell it (ie one would still count as the marital home). He would also have a claim to come and go as he pleased etc. and if he did meeting someone else, you would still need to sort matters out (or if you do, never say never! Mind you, I am separated and I cannot see myself getting into another relationship).

I do think from what you say it makes sense to keep the family home and if he is happy to get the second property with his part of the equity, then do that. Does he accept that divorce is on the cards? If he doesn’t, that could potentially be more difficult but it comes down to what you want to do. Scots law is quite straightforward when no DC under 16 are involved, I think. Assets and debts (from the start to the end of the marriage) are split 50/50, so you need the financial agreement setting this out. You would need to agree what the date of separation is. Once you have got the financial separation, it is really up to you if/when you proceed for divorce.
So for example, I plan to get divorced when youngest is 16 because trying to agree the child arrangements with various moving parts was costing too much money and just not worth the stress.

Although I think it is still the case that it is one year separation with consent and two years without consent, so the date of separation is important here.

Thanks that's all very useful, yes he's on board if it's divorce, we just want to do what's best for everyone to be honest. He has no desire to be with me any more than I do with him. It's entirely mutual.

Hope it all works out for you too and thanks to all for the information and advice, much appreciated.

Just a thought OP. My XH and I separated with a similar outlook and a lot of good will, which evaporated very very quickly once we actually parted, for many reasons that were completely unforseen. The desire to be fair and to protect the children meant that I gave up a lot of what was mine because I thought that was fair. A few years down the line and I realised that I'd been done over, not intentionally I don't think. I'd see a solicitor and have a chat with them, because the law is there to protect both of you and your assets.
Good luck OP.

I get what you are saying phlem. There is an element of that already.

Nothing is fair really. I've always been the higher earner and the one who sacrificed things for childcare.

We've always had a joint account and he's never really spent a lot from it but if I'm honest then things like groceries are more skewed to him. I'm going to have to get a mortgage and use up my share of savings and some pension money to buy him out. House needs some work but I won't have the money to do them etc

It's just not going to be fair and still achieve the objective. I can put up with that if ultimately the DC inherite the assets. So I guess that's where the need to be careful sits.

We've also been together for 30 years, married for nearly 28. It's hard to remember who had what and how much came in and who spent what etc.

I think what you had when you got married matters if you had assets you brought to the marriage, as they would be counted as yours. So this is where it is important that you both ask your respective banks to provide statements from when you got married. You also need a valuation of your pensions which your employer should provide. Basically the solicitor will give you a sheet with every possible asset or debt possible at the start and end of the marriage and go from there. what happened in between only matters really if one party has got savings put away during the marriage and the other has not (eg in my case from paying all the children costs despite us earning the same)

I ended up having to file in court and ask for x amount, based on what I thought it should be (as he stalled at every point). I think that x was less than it should have been but the child arrangements part was so hostile and difficult, making sure the DC were okay was my priority (which chimes with what Phleghm says). The money went straight to the legal fees. So if you can agree via mediation, so much the better. You can always ask for a % higher than 50/50 which he may agree to, but the law works on the presumption of 50/50.

I suppose one thing is if you can get the financial settlement out of the way and keep the house, and you have your job, then you do have the independence and autonomy and you won’t be seen as the default to provide care for him should he need it (sorry that sounds really mean of me, but now I just think well, it is the new girlfriend’s job to be the support person). My house also needs work (too busy earning the money right now to focus on that and paying various other costs), but it is mine. It’s a case of doing what you can when you can and finding joy in what you have. Plus you might want to move in a few years time, you don’t know. One thing at a time. If the finances are settled, you have more choices.

Also, our separation took several years to resolve (and we are not divorced yet) and that was with solicitors involved. This glacial pace is not the norm, my ex is just a bit of the controlling type (he stopped this when he met someone new, but by that point, I gave up with it). But it is a process which can take time.

28 years of marriage is a long time and there will also be a lot to unpack emotionally. I would take care to ensure you have real life support and time for yourself to process this.

thank you for your good wishes too. I hope you find a way through this which works for you.

Can you agree to backdate your separation date? If you have agreed a year ago but not actioned it then is there a way of using that to push the divorce?