Legal Separation in New York FAQs

Spouses in a faltering marriage may want to consider legal separation as an alternative to divorce. For New York residents, the questions and answers below may help you make a decision.

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How Does Legal Separation Differ from Divorce?

A legal separation can resolve all the issues you'd address in a divorce. But after you obtain a legal separation, you'll still be married. Only a divorce can formally dissolve your marriage.

What's Considered a Legal Separation in New York?

If you want to be legally separated in New York, you can use a procedure known as an "action for separation." This method involves starting a court case based on grounds (reasons) similar to what you'd allege if you were seeking a divorce. The case proceeds through court, and at the end you'll receive a Judgment of Separation. This procedure will also seek to resolve issues you'd find in a typical divorce case. But, as indicated above, when the case is over you're still married.

Today, the preferred path to being legally separated is to enter into what's known as a Separation Agreement (also called a Property Settlement Agreement). This basically gets you to the same place as an action for separation, but it doesn't involve the courts.

What Exactly Is a Separation Agreement?

Essentially, a separation agreement is a written contract that the spouses enter into. Like an action for separation, its goal is to resolve issues addressed in divorce, like custody and parenting time (visitation), child support, spousal support (alimony), and distributing the couple's property. As with any valid contract, the spouses are legally obligated to abide by its terms.

The primary reason taking this route is so popular is because it generally saves time and money. Court cases often tend to move at a snail's pace. Also, court appearances are frequently "hurry up and wait" affairs. You could be sitting for hours waiting for a conference or hearing that may take only fifteen minutes. The longer you're waiting around, the higher your legal fees. In pursuing a separation agreement, however, you and your spouse have control over the timetable needed to complete your negotiations.

Because a separation agreement is a binding contract, you can use the courts to enforce it, if needed. And if you eventually decide to get divorced, you'll usually be able to incorporate the agreement into your divorce judgment. This makes concluding the divorce easier, because you've resolved the major issues in advance.

Note that, under New York law, the validity of a separation agreement in a matrimonial case is conditioned on its being properly acknowledged (notarized).

Also, if a couple sign a separation agreement, but live together afterwards, the law may still consider them separated. For example, in one case a couple lived in the same house for four years after signing a separation agreement. The court decided they were separated during that time because they didn't live as husband and wife or engage in sexual relations. These types of determinations by a court are fact-specific, so you should check with a divorce lawyer to see if your particular circumstances comply with the law.

Are There Reasons to Opt for Separation Over Divorce?

There are several reasons couples might choose to pursue separation. Sometimes, it's a matter of economics. Spouses may want the ability to continue to file joint tax returns, for example. Or they might do it to technically remain married for the ten year period needed for one spouse to claim social security based on the other spouse's benefits.

Another popular reason was to allow a spouse to remain eligible for continued medical coverage through the other spouse's employer. However, the viability of that option could be questionable in today's health care climate. So spouses shouldn't bank on this being available to them unless they've verified it in advance.

Couples may also choose separation if divorce violates their religious beliefs. Likewise, despite the increased acceptance of divorce today, the possible social stigma associated with it may be a source of concern to some.

There are also couples who believe separation would be less traumatic for their children. The validity of that reasoning depends on the circumstances of each case. But be aware that opting for separation could result in the children holding out hope of a reconciliation. If getting back together isn't in the cards, consider consulting a mental health professional about the possible impact of your decision.

Is There Such a Thing as a Trial Separation?

There is. The term ordinarily refers to an informal agreement between spouses to live separate and apart. You may see this in situations where couples want to take stock of their marriage, but don't feel they can effectively do this in the midst of the tension that exists while they're living together.

There's no formal provision in the law for a trial separation, as such, so it's important for the spouses to set the ground rules. Issues to address include items like: where the children will primarily reside; a parenting time schedule; responsibility for paying marital bills, like a mortgage or medical expenses; and, providing financial support if a spouse needs it.

Be aware that with an informal trial separation, if a spouse violates the agreement's terms, the other spouse may not have a legal recourse (unlike with a legally viable separation agreement). Note, however, that when it comes to issues involving children, like custody and child support, you can always make an application to the court for assistance.

Must I Use an Attorney for a Legal Separation?

Being represented by an attorney isn't a requirement for a legal separation. That said, you should understand that, as with a divorce, the issues addressed in separation can be quite complicated. Attempting to resolve them without being well-versed in family law could come back to haunt you. For your own protection, consider retaining a knowledgeable and reputable local divorce lawyer.

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