If you’re having serious marital problems and don’t want to live with your spouse, divorce may seem like the only option. However, legal separation is an alternative that can work for many couples. It leaves open the possibility of reconciliation and retains some of the benefits of marriage but establishes terms for living separately.
How Can You Legally Separate?
Couples can legally separate two ways in New York. The first is a judgment of separation, obtained by filing for separation in court. However, there must be grounds for filing, which are limited to abandonment, adultery, cruel and inhuman treatment, failure to properly support a spouse or a spouse’s imprisonment for three or more years. Financial and custody terms are negotiated by the parties or the court decides.
The second and more common option is to negotiate and sign a separation agreement. The agreement addresses the same issues as a divorce matter, including equitable distribution of property, spousal support, child support, child custody and parenting time.
When Is Legal Separation Used?
Separation is often chosen when one or both parties aren’t sure about divorce or refuse to divorce on religious or other grounds. Sometimes, a party needs time to adjust to the idea of divorce and separation can help with that process. Whatever the reason, dissolving the marriage is not desired at that point in time. By separating, however, spouses can start living independent lives, while keeping some marital benefits such as the right to financial support, health insurance coverage, certain military benefits and file a joint tax return.
Note that some health insurers may discontinue coverage of a spouse in the case of legal separation.
Separating, whether legal or otherwise, can be less contentious than divorce, saving both time and money. In many cases, lawyers and/or a mediator help negotiate the terms of the separation, avoiding litigation and the associated costs.
What Are the Downsides of Separation?
As long as you are married, neither of you can marry another person. However, if you decide to divorce, either of you can convert the separation into a divorce without the permission of the other, provided you have lived separate and apart for at least one year pursuant to a separation agreement.
Legal separation can be more expensive if you ultimately decide to divorce. That’s because you first went through the process of getting the judgment of separation and now you have to convert it into a divorce. You don’t have to renegotiate the terms of the divorce, but there is still paperwork that needs to be completed and filed in addition to the filing and attorney’s fees associated with the conversion.
If you are considering separation, contact us to learn how we can protect your rights.