Some spouses choose to live apart for an extended period while remaining married. They could be contemplating divorce or just find it preferable or convenient for other reasons. However, it doesn’t matter how long they live separately; they are still legally married. That means their obligations to each other under New York law don’t end.
Marriage Is a Legal Contract
When a couple gets married, they enter into a contract that gives them certain rights and responsibilities to each other by virtue of being married. For example, spouses are obligated to support each other financially, have inheritance rights, can file joint tax returns and utilize the estate tax exemption, can receive Social Security spousal and death benefits and military benefits, can make emergency medical decisions for each other and have rights to marital assets and debts in divorce.
The marital contract doesn’t end until the parties go through the divorce process, ending with a divorce judgment signed by a judge and entered by the county clerk. Therefore, couples living apart are not relieved of their financial responsibilities and cannot remarry unless they divorce.
It may seem strange that the government doesn’t dissolve a marriage when spouses don’t live together, but states don’t get involved in how couples choose to live their lives. They are free to live apart if they both make that choice.
When You Should Opt for Legal Separation
If you’re living apart because you are considering divorce or you want to remain married for religious or other reasons, legal separation is a good option. Couples can get a judgment of separation by filing for separation in court if they meet the requirements. As part of this process, spouses must negotiate the financial terms of separation and child custody matters. If they cannot agree, the court decides these issues. Either way, the final terms become part of the judgment of separation.
Alternatively, spouses can negotiate and sign a separation agreement without going to court and getting a judgment. The 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.
The benefit of legal separation using either method is that the couple maintains some marital rights, but other ones can be limited. For example, the parties can alter rights to spousal support, inheritance rights, medical decisions and other matters. Note that one advantage of a separation agreement is the ability to preserve health insurance for the dependent spouse. With a judgment of separation (or a divorce) in New York, the dependent spouse may only get health insurance under their spouse’s policy for three years through COBRA and must pay the premium.
Note that if the couple later decides to divorce, the judgment of separation or separation agreement can easily be converted into a divorce.
When You Should Consider Divorce
If you don’t want to remain married but you are delaying filing for divorce temporarily, you should consider the benefits of filing sooner rather than later. Once you file for divorce, your income becomes separate property, which is not split in a divorce, so your spouse won’t have rights to your wages, bonuses, stock options and other income after filing, although you may be responsible for child and/or spousal support upon your spouse’s making an application to the court.
Once you file, each of you is also responsible for his or her own expenses, except for those related to maintaining marital property. Therefore, you don’t have to pay your spouse’s other expenses. You can also take steps to limit your spouse’s ability to make medical and financial decisions for you or make a claim on your estate if you die.
Once the court issues a divorce judgment, you will be free to marry again.
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.