Financial Duress and Divorce

Many couples seeking divorce are discovering they can’t afford it.

<a href="">by Tobi Elkin</a>
Photograph: iStock

Nine months ago, Rachel Gund (some names have been changed), 44, decided she wanted to divorce her husband of nearly 20 years. But nine months later, she continues living under the same roof with him and their two teenage daughters: Neither partner can afford to move out so they live like roommates, sharing the marital home and dividing the expenses.
Sound far-fetched? Not really, say attorneys and therapists who are seeing more couples delaying divorce filings and physical separation due to the economic recession. In many cases, couples can’t sell their homes because of the soft real estate market. In others, one or both partners has suffered a job loss. Often, there’s a mountain of shared debt that must be cleared before a split can occur.
“Cohabiting has spiked because people just can’t afford to move out. They can’t afford to buy themselves out [of the house],” notes Kathyrn Dickerson, partner at Smolen Plevy in Vienna, Va. “You used to be able to refinance a mortgage more easily, but not any longer.” In some cases, she says the value of a house is "under water" (when the value of the home falls beneath the value of the mortgage) and there’s simply no equity to divide.

"The question is who will take what debt," Dickerson says. Gund and her husband signed a legal separation agreement in March (2008) and continue living together. The agreement details the percentage of the living and childcare expenses each partner must pay. The couple also agreed not to bring dates home. In the state of New York where Gund lives, the legal separation agreement becomes the divorce agreement so in March 2009, she will be divorced. She plans to put the house up for sale just prior to that. 
Yael Lazar, a Long Island-based attorney, says she’s handled more legal separation agreements in the last year – they cost about $2,000. “I’m finding in my practice that divorce is a luxury in this economy I have some clients that have stopped the divorce process midway because of what it would cost them to live separate and apart.”
Lazar points to a unique case of a couple with kids who’ve been married for 20 + years. They pursued a divorce but continued to live under the same roof. After spending thousands of dollars in legal fees, they found that the husband, who was taking home $6,000 a month, would have to spend $4,000 per month on spousal maintenance and child care expenses. “He decided it wasn’t enough for him to have any sort of life until his kids were 18 so he reconciled with his wife.”
In yet another case, Lazar cites a client who couldn’t afford his own place so he moved into the computer server room at his workplace. He lived there for eight months rather than continuing to live with his spouse.
“A lot of people because of the rough economy are staying unhappily married,” says Stacy Schneider, lawyer and lawyer and author of He Had It Coming: How to Outsmart Your Husband and Win Your Divorce (Simon Schuster 2008). “The number one reason is the housing slump… the house is the primary marital asset and there’s no money to finance separate lives.”
Schneider relates the story of one New York City couple that constructed a wall down the middle of their living room and lived with the line of demarcation for a year.
Dallas-based Rhonda Mitchell is unable to file for divorce because she can’t afford an attorney. The 41-year-old self-employed hairdresser continues living with her son and husband in a rented house. “It sucks, we haven’t shared a bedroom in months. It’s beyond tension.” She sought legal assistance from a non-profit organization and looked into mediation. Currently, she’s saving up money to retain an attorney and file for divorce. Niether Mitchell, her husband or their seven-year-old son has health insurance.

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