Should You Separate or Divorce?

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by | Dec 11, 2019 | Blog, Divorce, Separation

Some couples with marital problems hesitate to get divorced for various reasons. In these situations, New York law allows spouses to separate and come to an agreement regarding their finances and child custody and support issues. While a separation may provide certain benefits over divorce, it does pose risks and can jeopardize the parties’ rights if not handled correctly.

Advantages of separation

Separation may be chosen by parties who are not ready for the permanence of divorce. They can separate and start living independent lives, but still maintain certain legal, financial or emotional benefits. For example, a couple may continue existing health insurance coverage, certain military benefits or keep filing a joint tax return together. Separation may also be used where the parties’ religious beliefs prohibit or discourage divorce.

Disadvantages of separation

Since the couple is still legally married, separation does not allow for remarriage by either spouse. In addition, the parties cannot move forward in their lives psychologically. Often, separation is used by couples who cannot face the truth of divorce and see it as an interim step that still allows them to change their mind. However, this can prolong emotional healing. Assuming the couple will eventually seek a divorce, separation also makes divorce more costly because the parties will have to pay the costs of filing for divorce after spending money to file for separation. It should also be noted that some of the financial benefits mentioned above may be lost in some instances. For example, some health insurers may discontinue coverage of a spouse in the case of legal separation. Also, changes in the tax laws in 2017 have reduced some of the advantages of filing jointly. An attorney and financial advisor can help evaluate the impact of separation to the parties’ finances.

Legal separation also requires negotiating custody, support and property division. Absent a written separation agreement, each spouse remains legally obligated to financially support the other spouse. As a result, the parties’ actions in living apart without a separation agreement may affect their future legal rights as will be discussed further in a future post.

If you are considering separation, please contact us to discuss how we can help you move your life forward in a positive direction that best suits your goals.

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