Understanding Legal Separation in New York

Broken marriages happen for many reasons, but in the end, the specifics do not matter. The reality is that the two spouses can no longer live with each other and need a solution that separates them with the least possible hassle. A divorce is often the result of a broken marriage, dissolving the partnership and allowing ex-spouses to remarry. 

However, many couples prefer not to divorce, be it for moral, religious, or even financial reasons. That is where a solution like legal separation in New York becomes viable, providing an alternative to divorce that allows the couple to remain married while living separate lives.

Legal Separation Process

Legal separation under New York law occurs when a couple agrees to split and subsequently enter into a contract explaining how they will handle their future legal and financial affairs. 

A separation agreement will usually address four issues:

• Child custody
• Child support
• Property division
• Spousal support

While the couple can negotiate the terms for resolving these issues with guidance from a court, they do not need to do so. 

They also do not need to record their agreement with the court or seek judicial approval in order to proceed with their separation in the first place. The intent is that each party will have legal representation to ensure the agreement treats each party fairly.

The separation will take effect the day the spouses sign their agreement and have it notarized. After a year or another agreed upon time for the separation the couple can have it converted to a divorce based on the contract’s terms if they so choose.

The one year period of separation is an old standard from the use of a conversion divorce, but is no longer required due to no fault divorce in New York State. Parties can live separate and apart for any period of time under a separation agreement, but many decide one or two years is a fair period of time before moving forward.

Legal Separation vs. Divorce

Most agreements, whether a separation or divorce, cover all of the same areas and issues. Typical terms for an agreement state the following:

• The parties will live separately
• Neither party will pay the other’s bills
• The spouses will not be responsible for each other’s debts
• The couple will share custody of their children
• The couple will share expenses, using child support payments to make up the difference

In its simplest terms, a legally separated couple remains married while living separately and without being responsible for each other’s debts or other financial obligations. Therefore, they have the choice to reconcile and live together as a married couple again or convert their legal separation to a divorce.

In many cases, the main reason for a legal separation rather than a divorce is for one party to remain on the other party’s health insurance for a period of time. 

Divorce and legal separation in New York are two distinct concepts. A divorce has the following key characteristics:

• Divorced people are single and can marry someone else
• Certain assets including retirement accounts require either a judgment of divorce or a judgment of separation from a court
• A judge may determine the distribution of assets if the parties cannot agree
• A judge establishes custody arrangements and child support payments

By contrast, the following features characterize legal separation:

• Separated couples remain married and cannot marry another person
• The spouses negotiate the division of their property in a separation agreement
• Separation terms define where children live and who will make support payments

From these differences, you can envision a few situations in which legal separation in New York would be impossible. First, you must know your spouse’s location so you can negotiate the terms of an agreement. If you cannot find them, legal separation will not be an option.

Second, you and your spouse must be willing to negotiate a separation agreement. While you do not necessarily need to be on “amicable” terms, you must both be willing to discuss your legal, financial, and family affairs. You can only separate if both spouses can agree to the separation agreement’s terms.

Contact Us to Discuss Legal Separation in New York

Legal separation can solve many problems between you and your spouse without fully committing to a divorce. Contact Aiello & DiFalco, a family law firm in Garden City, New York, today to discuss legal separation and how you may benefit from the process.