Here in New York, a married person who wants to end his or her marriage has several available options. The alternatives for ending a marriage include “conventional” divorce, annulment (which is not available to all married couples), and legal separation.
Which option is best? As Rochester divorce attorneys, we know that many choose divorce automatically, but if you are ending your marriage in New York, you should give the legal separation option some thoughtful consideration. “Legal” separation, however, is more than just moving out of the marital residence; it’s a legal procedure.
What does legal separation accomplish? And what does it entail? Is legal separation the right choice for you and your spouse?
But first things first. Whether you divorce, annul your marriage, or legally separate, when you end a marriage in New York, you’ll need the sound advice and guidance that an experienced family law attorney provides. You’ll need that advice and guidance from the start.
WHY DO COUPLES CHOOSE LEGAL SEPARATION INSTEAD OF DIVORCE?
Marital partners may choose to separate legally – rather than divorce – for many reasons.
Some of the most commonly cited reasons for legal separation include:
- The couple may not be sure whether they want to divorce.
- The couple may feel that they cannot afford to divorce.
- The couple may have religious beliefs that forbid divorce.
- Financial benefits such as health insurance coverage continue during a legal separation.
Most of the matters that will need to be resolved in a divorce can be resolved beforehand in a legal separation. However, unlike divorce, when a legal separation has been established, the spouses are still married under the law and may not legally marry someone else.
WHAT FIVE ISSUES SHOULD BE ADDRESSED IN A SEPARATION AGREEMENT?
A separation agreement is a legal contract between spouses that specifies the responsibilities and rights of each partner while they are living separately.
When partners obtain a legal separation in New York, their separation agreement can and usually should resolve these five issues:
- the division of marital assets and debts
- spousal support (maintenance or alimony)
- child custody
- child support
At a minimum, a separation agreement should spell out who your children will reside with (if you and your spouse are parents), who will be responsible for paying which bills, and how properties like cars and the family home will be divided and managed.
HOW WILL A DIVORCE LAW FIRM HELP YOU?
If either spouse fails to comply with the conditions and terms of a separation agreement, it can be enforced by the courts in this state. The arrangements that are established in a separation agreement may also be part of the divorce judgment if the partners later choose to divorce.
That’s one reason why it is so imperative to consider the conditions and terms of a separation agreement carefully. Discuss the agreement with your attorney and have all of your questions about the agreement answered before you sign.
A separation agreement in this state is an enforceable legal contract that is typically prepared by an attorney. A good family law attorney can ensure that nothing in the conditions and terms of the agreement poses any risk to your long-term best interests.
WHAT DOES A LEGAL SEPARATION AGREEMENT ACCOMPLISH?
After both partners sign it, the separation agreement is filed with the County Clerk in the New York county where either partner resides. After one year of legal separation, either spouse may seek a no-fault divorce.
Legally speaking, a separation agreement declares that the partners no longer reside in the same residence. The separation agreement must be entered into voluntarily, and it must be signed by both spouses before a notary.
You and your spouse may legally separate for as long as you like, but if you use legal separation as the basis for a divorce in this state, you must reside apart and have the separation agreement in place for at least one year.
WHAT IS REQUIRED FOR LEGAL SEPARATION IN NEW YORK?
There is no residency requirement for obtaining a legal separation by agreement in New York so long as both parties are New York residents at the time the separation agreement is signed.
Otherwise, anyone who is seeking a legal separation in New York must meet one of these two criteria:
- At least one partner has been residing in New York continuously for at least two years prior to filing for legal separation.
- At least one partner has been residing in New York continuously for at least one year prior to filing for legal separation, and you were married in New York, you resided in New York when you married, or the grounds for the separation arose in New York.
In this state, legally separating spouses are responsible for drafting their own separation agreements. Separation agreements can be long and complicated, so you’ll need the help of a qualified divorce lawyer or an award-winning family law attorney.
WHAT ARE THE DISADVANTAGES OF LEGAL SEPARATION?
Legal separation is right for some couples, and as you’ve just read, it can provide a number of advantages. However, a legal separation may not work well for other couples. What are the disadvantages of legal separation?
- Legal separation does not end a marriage. Partners still have financial and legal ties to one another.
- You cannot marry someone else when you are legally separated. You are still legally married.
- It takes a full year before a legal separation agreement can become the basis of a divorce.
WHAT ARE THE ALTERNATIVES TO LEGAL SEPARATION?
If the disadvantages of a legal separation outweigh the advantages in your own situation, you may want to consider these alternatives:
- Live separately but don’t put anything in writing.
- Live separately but skip the separation agreement and have your attorney file petitions with the court for child custody, visitation, and child support.
- File for a divorce with the help of an experienced Rochester family law attorney.
WHEN SHOULD YOU MEET WITH A FAMILY LAW FIRM IN NY?
Ending a marriage is never easy. There’s always an emotional toll, and if children are involved, ending a marriage is even more difficult. You’ll need an attorney who can be sensitive to your needs but aggressive on your behalf.
When you know the marriage is going to end, get the legal help you need at once to protect your children and your interests. A good attorney’s help is your right.