Perhaps the most emotionally difficult part of the breakup of a romantic relationship is the first permanent, physical separation. The intense emotions involved can cloud judgment and lead to bad decisions. There are a few simple ideas to keep in mind that can avoid heartache later.
This article makes two assumptions: (1) The relationship is entangled financially or there are minor children of the relationship, and (2) the parties are not fully cooperating. If the parties have not been together very long, then physically separating usually means no more than packing up one of the parties’ property and moving it somewhere else. And, if there is still trust and a desire to “do the right thing” remaining in the relationship, then most of the separation issues can be worked out over time. It is only when an entangled relationship lacks trust and the spirit of cooperation that caution is important.
Even in fully entangled and contentious relationships, most of the separation can be worked out later. There are two issues that should be addressed immediately: parenting of the children and the possession and cataloging of personal property.
Children of parents who are separating must transition to a residential schedule. If the parents disagree, judicial determination of that schedule can be one of the most contentious of court proceedings. A primary reason for this contentiousness is that the best interests of the children are usual not obvious. As a result, courts have tremendous discretion in fashioning a child’s residential schedule.
When considering a child’s best interests, courts give weight to the child’s current residential schedule, particularly if that schedule has existed for some time. There are several reasons for this. First, the results of the current schedule can be observed while the results of a different schedule cannot be and so must be surmised. If the current schedule is working “just fine,” a court will be reluctant to try the unknown. Second, the court will wonder why the parent proposing the new schedule did not made the proposal earlier if the new schedule is really that much better for the child. Third, any change is disruptive for a child and, in the absence of a good reason, should be avoided. Of course, courts will make changes when they see problems with the current schedule. However, the problems must be pretty serious.
Therefore, you should not allow a disagreeable residential schedule to stand. First, you should decide what schedule is in the child’s best interest. Determining this is a parent’s prerogative. If the other parent does not agree and is unwilling to work with this “best schedule,” there are only three choices: (1) Force the “best schedule.” I never recommend putting the children in the middle of a tug-a-war. (2) Acquiesce to the other parent’s plan. The longer that the parents follow this other plan, the harder it will be to change it. (3) Ask the court to order your residential schedule. This is the best choice.
If you are the parent leaving the child’s house, you must decide whether it is best for the child to leave with you or stay with the other parent. If it is best for the child to leave with you, and if the other parent will not agree, then the best plan is to stay until the court can intervene. If staying is not tenable, such as in a domestic violence situation, emergency court intervention may be available. If it is best for the child to stay but the other parent will not allow sufficient visitation, then it is best to seek a court order right away rather than to allow the other parent’s restricted visitation plan to stand.
If you are the parent staying in the house and the other parent is willing to fight physically for control of the child, which of course is harmful to the child, then it is best to allow the child to leave with the other parent (unless that will be harmful to the child) and seek an emergency order restoring the child back to the house.
The most important point is to not procrastinate. Decide what is best for the child and attempt to convince the court of this. Residential schedules gather momentum the longer they are in place.
The party that leaves most of the couple’s personal property behind should be cautious. If that party has any concern about what the other party will do with that property, then some planning is in order.
First, pack up and take everything that is either very valuable or very sentimental and is also personal. This includes jewelry, heirlooms, diaries and special books, Grandma’s precious bowl, etc.
Second, photograph everything that you are leaving behind that has value or is sentimental. Document where in the house each of the items was when you photographed it. Don’t rely on older photographs because it is important to document the current state of the personal property. Take many photographs. Documenting the property of a typical, middle-aged married couple may take a few hundred photographs. Photograph items that you consider the other party’s as well as that which you consider joint property or your property. Store the photographs in a safe place. It also helps to tell the other party about the photographs so he or she will think twice of disposing of the property.
Third, if there are special items that you had to leave behind, attempt to obtain possession of those items through a court order. A court order might be helpful in getting items necessary for a new household such as pots and pans. But you should also attempt to get those items that you are worried will be harmed or will disappear. The sooner you obtain these items, the better.
If you had to flee the house, you will not have time to pack up personal property or document what is there. Court intervention to get safe access to the house as soon as possible is important in these cases both to retrieve important items and to photograph everything else.
Most cases do not require these measures. But I see many cases where a party ends up with an unfavorable parenting plan or with sentimental and valuable personal property missing because of a lack of planning and immediate action.
This website provides general information to the public on legal issues. These informational materials are not intended, and should not be taken, as legal advice on any particular set of facts or circumstances. You should contact Brandli Law for advice on specific legal problems.
Copyright 2015 Brandli Law PLLC