A separation agreement is an agreement that addresses how a married couple wants to handle financial and child custody issues while they are separated. If you and your spouse have decided to separate, you should understand the benefits of having a separation agreement that outlines your respective rights and duties while you are living apart.
What Is Legal Separation?
Under New York law, couples can legally separate either pursuant to a judgment of separation or a separation agreement. Typically, separation occurs when spouses want to live apart but don’t want to divorce at that time. The separation enables them to retain some of the legal advantages of marriage, such as jointly filing tax returns, dependent health insurance coverage and other benefits, while starting a new life in a new home.
To get a judgment of separation, you must prove one of the following grounds: abandonment, adultery, cruel and inhuman treatment, failure to properly support you or your spouse’s imprisonment for three or more years.
In contrast, a separation agreement is “no-fault.” You and your spouse don’t have to prove that one of you engaged in improper conduct. You just have to negotiate and sign an agreement that addresses the same issues that would be decided in a divorce matter – equitable distribution of marital property, spousal support, child support, child custody and parenting time.
Why Should You Have a Separation Agreement?
Separating without a judgment of separation or separation agreement means that your respective legal obligations to each other as a married couple continue as is. You are financially responsible for each other and your children and have full rights to each other’s income and assets.
In contrast, a judgment of separation or a separation agreement can change the legal and financial relationship you have with your spouse. For example, instead of being fully responsible for each other financially, the court can order or you can negotiate a specific amount for spousal support.
Under both options for separation, you can still maintain certain legal and financial benefits as mentioned previously. However, one advantage of a separation agreement over a judgment of separation is that one spouse can stay on the other spouse’s health insurance. With a judgment of separation, the dependent spouse is limited to three years of health insurance under COBRA, which they have to pay for.
What Should Be in a Separation Agreement?
The agreement should settle all issues related to the division of marital assets, spousal support, child support, child custody and parenting time. It should also address estate rights if a spouse dies while the couple is separated.
When Should a Separation Agreement Be Signed?
Agreements must be signed before a divorce is finalized to ensure all issues are settled between the parties. However, spouses are not required to seek a divorce. They can stay separated as long as they live if they choose.
Can You Get a Divorce Later?
After a year of legal separation, either spouse can go to court to convert the judgment of separation or separation agreement into a divorce without the permission of the other spouse.
Separation is the right solution for many couples, but it’s best to discuss your options with an experienced attorney. If you are considering separation, contact us to learn how we can assist you.
