It is not uncommon for couples to avoid the divorce process. For obvious reasons, it is not an experience most would opt for. The result is that some couples decide to separate for the time being. When they decide their marriage is over they simply separate physically, not legally, and leave the marriage in tact. What some people don’t realize is that even if spouses are living apart, they are still considered married in the State of Nevada and there can be long-term consequences.
- You will not be legally allowed to marry someone else.
- If one spouse does not have a will, the other spouse automatically inherits.
- You may be responsible for a portion of debts incurred.
You may file a joint income tax return and be on a family health plan.
Legal separation (sometimes referred to as “judicial separation” or “separate maintenance”) is a legal process by which a married couple may formalize a separation while remaining legally married. A legal separation is granted in the form of a court order.
A recent study concluded that a majority of married couples that separate will eventually divorce within three years; approximately 15 percent of couples remain separated even past the 10-year mark.
Spouses who separate for a significant amount of time before completing a legal separation or a divorce may be unknowingly forfeiting rights and in some cases, can make their eventual divorces more complicated and by extension, more expensive. Defining the relationship legally makes certain assets and support can be determined at the time of separation and that debts and assets do not continue to be considered community property under Nevada law.
Unfortunately, in many cases any new debts incurred by one of the spouses after a couple has decided to separate are considered to be the responsibility of both spouses. This is true in both community property states and common law states, but courts may make a different determination, depending on the circumstances of the debt.
For example, take a husband and wife who have been living apart for five years and never filed a legal separation. Let’s say they decided the wife could keep all of the couple’s property, the children are living with her and they visit the husband every second weekend. The husband meets someone and decides he wants to remarry. Now to remarry, he has to get a divorce first so he contacts a lawyer to find out what to do. The husband’s lawyer explains his rights to him. At this point he realizes he didn’t get his fair share of the couple’s property and is paying too much child support. While decisions may have been made cordially between spouses, things can change throughout separations and the situation can quickly change. Had the couple sought legal advice, most likely, they would have had a more equitable split and these issue would not be coming up years later.
Now that five years have passed, here are just a few of the questions that will need to be addressed:
- Does the wife have to pay the husband compensation because she kept all the property?
- What if some of the property was destroyed or sold, does this mean the equity needs to be split or reimbursed?
- How much is the property worth today?
- How much was it worth five years ago?
- Should the husband pay less child support going forward?
- Can the husband ask the wife to refund him for paying too much child support?
- Do the parties have to share the credit card debt incurred by each of them
- Wife has saved money and now Husband wants half her savings, and he has no savings and significant credit card debt
Although not always easy to face, it is always in the best interest of both parties to seek legal advice when these situations occur.
For more information, contact Petroni Law Group at 420-4221.