It may seem strange for a couple to decide to legally separate, live apart and never file for divorce, but many people do just that. While some spouses use legal separation as a kind of trial run before they take the final leap to divorce, there are other reasons to separate. Regardless of the reason, there is no time limit on how long spouses can stay legally separated. As long as you both agree, you can continue for the rest of your lives. However, you should understand how separation works and the pros and cons before making a decision.
Why Would You Want to Separate without Divorcing?
Couples separate because they don’t want to divorce at that point in time. The most common reasons for this are when one or both parties aren’t sure about divorce and want to think it over, or they refuse to divorce on religious or other grounds.
What Are the Advantages and Disadvantages of Separation?
Separation allows spouses to be independent and live apart while preserving some marital benefits, such as the right to financial support, health insurance coverage, certain military benefits and file a joint tax return. However, other marital rights and duties could become limited, in certain circumstances, including the right to income and assets, inheritance, make medical decisions and other matters.
Couples may also choose separation because it can be easier and less costly to negotiate the terms of the separation, as opposed to litigating a divorce in court. However, if a couple decides to later divorce and there is no signed separation agreement between them, the parties will have to file in court, which could mean paying a lawyer twice – once for handling the separation (to the extent a lawyer is involved at this juncture) and then again for the divorce.
A significant drawback is that while spouses are separated, they cannot marry anyone else.
How Do You Legally Separate?
Couples can legally separate in New York either pursuant to a judgment of separation or a separation agreement. A judgment of separation requires going to court and proving one of the following grounds for the separation: abandonment, adultery, cruel and inhuman treatment, failure to properly support a spouse if at all, or a spouse’s imprisonment for three or more years.
Couples do not have to go to court for a separation agreement or prove fault. They can negotiate and sign an agreement without a judge. The parties only have to file in court if they want to convert the separation agreement into a divorce.
Note that another benefit of separation agreements over a judgment of separation is that dependent spouses can keep their spouse’s health insurance. However, if they seek a judgment of separation, dependent spouses are limited to three years of health insurance under COBRA, which they have to pay for.
Both a judgment of separation and a separation agreement can easily be converted into a divorce by either spouse without permission after 1 year of living separate and apart.
Couples can also separate by living in separate residences without a formal judgment or separation agreement. This option, however, is precarious at best since marital rights generally remain intact as though the couple lived together absent extenuating circumstances.
What Terms Should be in a Separation Agreement?
The separation agreement should address the same issues that would be decided in a divorce matter, including equitable distribution of property, spousal support, child support, child custody and parenting time and estates rights.
Whatever path you choose with your spouse, you should protect yourself legally. Contact us to discuss how we can help you pick the best option for your situation.
