About Legal Separation in New York

Each state has enacted its own laws regarding divorce and legal separation. Some states do not allow couples to become "legally separated" but New York is one of the states that does. If you are unhappily married you may be considering a legal separation and a divorce, but what are the differences between the two?

There are a lot of similarities between a divorce and a legal separation, for example, a couple can ask the family court for orders for spousal support, child custody, and child support in both actions.

If they choose, the spouses can begin dating other people with both actions, however, they cannot remarry if they are legally separated until they become divorced. The ability to remarry is one of the most significant differences between a legal separation and a divorce.

Why do spouses get legally separated?

Couples have different reasons to enter a separation agreement. Sometimes, they're not sure if they want a divorce, so they legally separate as they "test the waters" so to speak. It's sort of a trial period and usually the time apart helps the spouses decide if they want a divorce or not.

Other couples legally separate because they no longer want to be together, but they don't want to get divorced either. Usually, these couples don't divorce because:

  • Divorce is against their religious beliefs
  • They want to stay legally married for the children's sake
  • A disabled spouse needs the healthy spouse's health insurance

Generally, if spouses decide to become legally separated because they do not want a divorce, or they're simply not ready for one, they will enter into a separation agreement. A separation agreement is a written agreement that the spouses sign voluntarily without having to get the courts involved.

Legal separations help spouses work out issues regarding spousal support (called maintenance in New York), child support, and other important issues on their own schedule, and without the pressure of a divorce. If the couple decides to file a divorce action, they will have to adhere to certain deadlines.

New York's No-Fault Divorce

Today, New York law allows for no-fault divorce, which means all the couple has to do to divorce is provide a sworn statement that their marriage has been irretrievably broken for at least six months.

However, if a couple can show the court that they've had a separation agreement in place for a year or more, they can obtain a divorce judgement based on that alone. Additionally, the couple can submit the written separation agreement as a part of their divorce decree.

To learn more about separation agreements in Nassau County, contact Jason M. Barbara & Associates, P.C. for a free case evaluation!