Why Some Couples Choose Legal Separation Over Divorce

Some marriages are not meant to last a lifetime, but that does not mean divorce is the only option. New York also offers legal separation for those couples not ready to completely end their legal union.

There are many reasons why two people might want to lead separate, yet married lives. Some see legal separation as a temporary situation while they work through issues to determine whether they truly want to divorce. Others choose legal separation because divorce is frowned upon by their religion.

About a half dozen states – Delaware, Florida, Georgia, Mississippi, Pennsylvania, and Texas – do not recognize a legal separation.

What Legal Separation Does

A legal separation agreement provides the framework in which a couple (and their children, if applicable) live apart while remaining married in the eyes of the law. Legal separation can last indefinitely.

Documentation for legal separation resolves many of the same issues found in a divorce:

The agreement is filed with the clerk in the New York county where either spouse lives. The court retains the right to change the agreement if it determines the agreement does not take into account the children’s best interests. The final separation agreement is legally enforceable by the courts.

The legal separation date is the point when spouses stop accruing marital property and marital debt. Any asset or debt acquired after that date is separate property and not subject to division between the spouses.

Dating is not prohibited. A post-legal separation relationship is not considered adultery in New York law.

What Legal Separation Does Not Do

A legal separation does not return the parties to single status. They remain legally married and cannot marry someone else. Legal separation typically does not remove a spouse from the other spouse’s health insurance plan (although this is not always true). Legally separated couples can no longer file joint tax returns. Each person can choose a tax filing status of Single or Head of Household. In an informal separation, filing jointly is still an option.

Separation Agreement Can Be Precursor to Divorce Agreement

After being legally separated and living apart for at least one year, either person can initiate a divorce action based on the ground of being legally separated.

Separation agreements can include a provision that allows that agreement to be converted to a divorce agreement. This kind of divorce is often one of the easier, less costly ways to end a marriage.

A legal separation does not have to lead to divorce. Couples often use the time to work on their marriage without the thought of divorce and court dates hanging over their heads. Separation agreements can become null and void if the couple chooses to reconcile.

Judgment of Separation Ordered by the Court

Like divorce, legal separation can be granted by the court over the objection of the other spouse.

Judicial separation first became available in New York when the only grounds for divorce was adultery. Laws have changed. More grounds are now available, including no-fault divorce.

While uncommon today, one-half of a couple can ask the Supreme Court of New York to legally separate them from their spouse based on one of these grounds:

  • Adultery
  • Abandonment
  • Imprisonment of 3 or More Years
  • Neglect/Cruel and Inhuman Treatment
  • Non-Support of Spouse

The defendant spouse must be personally served the summons that notified them of the complaint filing.

Learn if Legal Separation Is Right for You

If you are considering a divorce or legal separation, talk to the team at Jason M. Barbara & Associates, P.C. We will walk through the pros and cons of your options in light of your specific situation. As a boutique law firm, we take a personalized approach to each case we take. We offer our clients transparency and consistent communication.

Learn more in a confidential consultation. Contact us online or call (516) 406-8381.