The Legal and Emotional Issues of Physical Separation in Divorce

Nothing makes a divorce more real than physically separating from your spouse, leaving the marital residence, and packing cherished items. Physical separation can have deep emotional and psychological ramifications, for spouses and their children. It also has serious legal implications that impact the equitable division of property. In this post, we first discuss the legal issues of physical separation and then conclude by discussing the emotional issues of physical separation, particularly as they pertain to children.

Legal Issues in Divorce

When spouses divorce, they must divide their property in an equitable manner. This requires several steps. First, they must identify separate and personal property. Separate property is any item the spouse had prior to the marriage and intended to keep separate – it could be a vase, it could be the marital residence. Personal property is a spouse’s belongings, from clothing to accessories to small mementos. It would be a good idea to actually itemize on paper all separate and personal property and do this inventory prior to any physical separation.

Next, spouses must identify marital property, which is any item purchased or acquired during the marriage. Marital property is what the court must divide equitably between the parties, and the court does not have the insight into emotional attachments or financial investments the parties have in different assets, so it is preferable that the spouses reach an agreement as to distribution. In thinking about marital property, it is best to think in two categories: large assets and securities, and what we will generally call furnishings. The large assets and securities consist of the marital home, retirement and investment funds, savings, cash, expensive jewelry, art, and other items that could be considered income-worthy. The remaining marital property falls into furnishings, everything from furniture to electronics to tools to the family pet. The large assets will be what the court focuses its concern on the most, and what the parties likely argue over the most because of the value of the assets. Furnishings have practical and sentimental value and can lead to heated disagreements. To reduce conflict and create an environment of cooperation, spouses should create an inventory of furnishings and begin dividing them together with an eye toward utility and sentimentality. So, if your mother-in-law gave you a crystal set of glasses as a present, let your spouse have it rather than up the anger factor. Other items will make more sense in one new home than another from a practical standpoint, and spouses should think of that in division. These items add up in value, so all moves should be toward fairness. Some items will be hard to divide – wedding gifts from mutual friends, photo albums, and other emotionally laden assets. Where possible, spouses should try and share these items, so each has a piece of good memories.

Finally, spouses must realize that once a divorce proceeding begins, the spouses have a legal duty not to dispose of or conceal assets. If a spouse goes out of town on business, the other spouse should not get a moving van and empty the house of its contents. Spouses should show respect for the process and their “stuff” by maintaining the status quo and not taking any property without first discussing and agreeing, preferably on paper, with a copy to the attorneys. Destroying an item of property you know your spouse likes just because you are angry will cost you later – not only will you be responsible for reimbursing the value of the asset, but the court could look negatively upon the behavior and tilt distribution to the other spouse. Gradual separation of physical assets – separate property, personal property, furnishings, and finally the big assets – will lead to the simplest and fairest distribution with the least amount of conflict.

Emotional Issues in Divorce

Property seems in one sense insignificant to the loss of a marriage and a life partner, but in another sense takes on greater importance because of its seeming permanence over the relationship itself. We can put more emotional significance on property during a divorce, and that can lead to poor decision-making financially and practically. The first step a spouse should take in dealing with property is to put a practical and emotional value on all items so that in a final division the spouse can see what net gain or loss practically and emotionally a distribution provides.

Some property’s emotional impact cannot be avoided – a wedding album, anniversary gifts, the marital bed, a child’s first crib. No spouse should have a monopoly on the emotional property; each spouse should have some piece of value from the marriage. Of course, special sensitivity should be given to property given by family or friends – it seems the easiest path to agreement if each spouse takes gifts given by their own family or friends. This may not always work out perfectly because of practical reasons or simple fairness, but even showing the heightened awareness of the emotional contribution helps lead to a better distribution. Sorting through emotional items can be difficult, but also cathartic, allowing the spouses to mourn and move on at the same time.

For spouses with children, the physical separation of property is much more devastating to the children because they associate so much of their young lives with their stuff, from their own bed to a computer to cuddling with a parent in the marital bed. Having to get new stuff may seem like a side benefit of divorce, but it also represents the reality of a family coming apart and a child having to live in two separate households. Spouses should spend time together discussing how they want to handle telling the children about the separation and whether they want the children highly involved in the physical property distribution. Some children may prefer to say which bed they want at which house, with which clothes, and which desk and other furnishings. It can be empowering to the children to have this control over the process of family upheaval.

Spouses may not want certain items displayed in their house, from pictures of the other spouse to certain items of property that have negative memories. But before pitching these items or leaving them in the attic, each spouse should think about what the absence of certain items will mean to the children. Clearly, the lack of any pictures will make the children uncomfortable about their own memories and how and when to refer to family times. If spouses are serious about normalizing life for children, they should see that these key memories and attachments do not just stop for kids and respect that by allowing parts of the home to reflect a continuation of a sense of family. Mom and Dad may no longer live together, but a child should not feel like one does not exist at the other’s home.

A carefully constructed plan of physical separation that involves the children in shaping their new homes and reassures them that both parents are loved and welcomed in their lives will ease the emotional separation anxieties surrounding divorce.

Should you need the assistance of an experienced divorce and child custody attorney in Creve Coeur and O’Fallon or have questions about your divorce situation, know that we are here to help and ready to discuss those questions with you.

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