Pros/Cons of Separation vs Divorce?

Brookenstein · Oct 13, 2004

What is the name of your state? CA

My husband of 7 years has decided he wants a divorce/separation. We have 2 kids and I'm a stay at home mom. The separation is completely amicable.

I have several questions/concerns. How much say does the court have in how things are divided? We just bought a house, have lots of credit card debt, etc. He wants to put all of our debt on him and keep the house. Would the court let us do it this way? Can they force us to sell the house? In our tentative agreement I'm sure I'm asking for way less child support than the court would grant, but its the amount that I feel I can survive on and still gives him money to pay the debt off.

Is there a benefit to a separation vs. divorce? What are the real differences?

We are currently in SoCal and living together, but I will move to OR with the children when things are squared away. Do I have anything to be concerned about with regard to taking the kids out of state? how long does the process take? When would I be able to move?

Is it possible to do this without an attorney since we are completely amicable and have the same demands?

Thanks for the help.

LdiJ · Oct 13, 2004

Brookenstein said:
What is the name of your state? CA

My husband of 7 years has decided he wants a divorce/separation. We have 2 kids and I'm a stay at home mom. The separation is completely amicable.

I have several questions/concerns. How much say does the court have in how things are divided? We just bought a house, have lots of credit card debt, etc. He wants to put all of our debt on him and keep the house. Would the court let us do it this way? Can they force us to sell the house? In our tentative agreement I'm sure I'm asking for way less child support than the court would grant, but its the amount that I feel I can survive on and still gives him money to pay the debt off.

Is there a benefit to a separation vs. divorce? What are the real differences?

We are currently in SoCal and living together, but I will move to OR with the children when things are squared away. Do I have anything to be concerned about with regard to taking the kids out of state? how long does the process take? When would I be able to move?

Is it possible to do this without an attorney since we are completely amicable and have the same demands?

Thanks for the help.

You can certainly file without an attorney if you choose to do so.

If your debts are roughly equal to the equity in your home then its perfectly reasonable for the person keeping the house to also take on the debts. However if your name is on the mortgage then a clause should be included that requires him to either refinance the loan into his name, or sell the house, within a specific number of years.

Its perfectly acceptable for you to take less than standard child support if you choose to do so.

If you intend to move to OR, and he is ok with that, then make sure that it is included in your agreement.

However if at any point in time he decides that he wants an attorney to look over the agreement, then you should also get an attorney of YOUR own as well.

Brookenstein · Oct 14, 2004

Thank you for the information.

The house will basically have no equity. Our combined credit card debts total about $30k, we owe $4k on one car (valued at about 5k, paid off in 20 mo), have a motorcycle owned outright (valued at maybe $2500), and owe $30k on a brand new mini-van (way upside down, paid off in May of 2010). The cars are in both of our names, as is the house. The bike is just in his name and about 40% of the credit card debt is in just my name and the rest is just in his. All of our debt was made together.

I guess I'm trying to weigh the consequences of getting less child support (no alimony) and walking away with no debt, vs getting an extra ~$600/mo or so and having debt.

At this point, if he would walk away with the cheap car, his bike, house (with 0 or negative equity) almost all the possessions that are not for the children, and I would get the new van, how would the remainder of debt (credit cards) be split? Does my 30k value van wash out him getting $30k in credit card debt or would we split the 30k in credit card debt down the middle or something?

Also, any idea how to guesstimate what he would have to pay in child support and/or alimony? He said he did an online calculator that took into account net pay and amount of time with the children and it estimated $1650/mo for child support. How much would a judge look at debt ratios and whatnot? Am I entitled to alimony?

What really is a legal separation? Is there a point to file one instead of an actual divorce when he doesn't see reconciliation as an option right now. Neither one of us want to screw the other, we are just looking for the best method to protect the children and makes the most sense financially in the long run.

Thanks again for the help.

LdiJ · Oct 14, 2004

Brookenstein said:
Thank you for the information.

The house will basically have no equity. Our combined credit card debts total about $30k, we owe $4k on one car (valued at about 5k, paid off in 20 mo), have a motorcycle owned outright (valued at maybe $2500), and owe $30k on a brand new mini-van (way upside down, paid off in May of 2010). The cars are in both of our names, as is the house. The bike is just in his name and about 40% of the credit card debt is in just my name and the rest is just in his. All of our debt was made together.

I guess I'm trying to weigh the consequences of getting less child support (no alimony) and walking away with no debt, vs getting an extra ~$600/mo or so and having debt.

At this point, if he would walk away with the cheap car, his bike, house (with 0 or negative equity) almost all the possessions that are not for the children, and I would get the new van, how would the remainder of debt (credit cards) be split? Does my 30k value van wash out him getting $30k in credit card debt or would we split the 30k in credit card debt down the middle or something?

Also, any idea how to guesstimate what he would have to pay in child support and/or alimony? He said he did an online calculator that took into account net pay and amount of time with the children and it estimated $1650/mo for child support. How much would a judge look at debt ratios and whatnot? Am I entitled to alimony?

What really is a legal separation? Is there a point to file one instead of an actual divorce when he doesn't see reconciliation as an option right now. Neither one of us want to screw the other, we are just looking for the best method to protect the children and makes the most sense financially in the long run.

Thanks again for the help.

Ok, since the house has no equity its pretty irrelevant. He will be assuming the debt, but he will also be keeping an asset that will presumably increase in value.

The van that you will keep has no equity, so its a wash.

He will be keeping assets of 1000.00 equity in a car, 2500.00 for a motorcycle, and most of the contents of your home (whose value I can't estimate but could be much higher than you think).

Since you have been a stay at home mom, then yes, I think you would be entitled to some alimony...at least on a short term basis. I don't know whether the 1650.00 he calculated for child support is accurate or not since I don't know his income.

It looks to me like its possible that he could end up having to take on most of the debt anyway, depending on the value of the contents of your home. I also would be hesitant to accept less child support and alimony than you are due...when 40% of that debt is in your name only, and could end up coming back to you if he gets in a bind and defaults or files bankruptcy. You are also taking on a pretty big chunk of debt with that van.

However....he is also agreeing to you moving and he may be less cooperative with that if you push for the full amount of child support and alimony that you are due.

Its a tough call. Tell me his annual income so I can see if that sways me either direction.

Brookenstein · Oct 14, 2004

He is right around $70k, give or take a couple.

We are from the NW and moved to CA 2 years ago because he was unhappy and thought it was the rain. All of our family is up there and it is a mutual decision for me to back there to get on my feet again. There is no way we could afford two living arrangements here or that would be the first choice for both of us.

What our current tentative plan is, is to file an assumption with the mortgage company to get it in his name only. He has enough available credit on the cards in his name to transfer the debt to him. He would get the other car, his bike and the household possessions. I would keep the van and get $1500/mo for the first year and then $1650 after that.

He is willing to take all this on and I'm nervous he can't actually afford it. Can I stick around until a divorce is finalized (and how long can that take) to make sure all bills are paid and protect me? If after the divorce he realizes he's under water and needs to declare BK am I in the clear on that? Can child support be lowered/changed by a BK?

Thanks again. You've been tremendous help.

LdiJ · Oct 14, 2004

Brookenstein said:
He is right around $70k, give or take a couple.

We are from the NW and moved to CA 2 years ago because he was unhappy and thought it was the rain. All of our family is up there and it is a mutual decision for me to back there to get on my feet again. There is no way we could afford two living arrangements here or that would be the first choice for both of us.

What our current tentative plan is, is to file an assumption with the mortgage company to get it in his name only. He has enough available credit on the cards in his name to transfer the debt to him. He would get the other car, his bike and the household possessions. I would keep the van and get $1500/mo for the first year and then $1650 after that.

He is willing to take all this on and I'm nervous he can't actually afford it. Can I stick around until a divorce is finalized (and how long can that take) to make sure all bills are paid and protect me? If after the divorce he realizes he's under water and needs to declare BK am I in the clear on that? Can child support be lowered/changed by a BK?

Thanks again. You've been tremendous help.

If he can get all of the debts out of your name (except of course the van) then you would be safe if he files for BK. Make sure that the utilities get changed too. You don't have to wait around until they are paid, just until they are definitely out of your name.

If his income is 70000.00 then he is probably correct about the child support amount.

It sounds like your plan is workable.

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