What are Your Options for Legal Separation?

by | Aug 30, 2022 | Divorce Professionals, should I stay or should I go

There are a variety of options available for couples who want to separate in New York.

These options can range from filing for a legal separation in court, to negotiating a settlement agreement with your spouse, to filing for divorce. It is important to be aware of the various options available to you, and to speak with an attorney before making a decision.

What is Legal Separation?

A legal separation is a process where a married couple lives apart while still remaining married. This can be done voluntarily, or it can be ordered by a court. There are various reasons why couples might choose to legally separate, including disagreements over finances, child custody, or religion. The terms of the legal separation must be put in writing, and must be agreed upon by both parties.

Legal separation can be an amicable way for couples to live apart while still remaining married. It can also provide some financial and legal protections for the parties involved. For example, in New York state, legal separation allows spouses to maintain their health insurance coverage through their spouse’s employer. It also allows spouses to continue to file taxes jointly (if they want to, so as to reap some tax benefits). The legally separated couple may also be able to receive Social Security benefits based on their combined income.

However, it is important to note that legal separation is not the same as divorce. The couple is still technically married, and they cannot remarry until they have gone through a formal divorce process.

woman in the foreground takin off her wedding ring, main in the background

How is Legal Separation Different From a Divorce?

The main difference is that a legal separation does not terminate the marriage. Instead, it legally separates the couple and allows them to live separately. This can be helpful for couples who want to take some time apart but are not ready to get divorced. Another key difference between legal separation and divorce is that spouses who are legally separated cannot remarry unless they get divorced.

There are a few key reasons why someone might choose to get a legal separation instead of a divorce. One reason might be if the couple is still in love but needs some time apart to figure out their next steps. Another reason might be if one person is not ready to fully end the marriage, but wants to live separately and have their own set of rules. Third, some people choose to get a legal separation instead of a divorce because it is seen as a less-final step in the process. 

Other reasons might revolve around religious beliefs and/or finances. Some religions do not allow divorce, so a legal separation may be the only option. If one spouse is financially dependent on the other, or if it would remain beneficial for both parties to have their finances pooled together in some structured ways, they may not want to get divorced because they would lose a portion of their income.

How Do You File for Legal Separation in New York?

1. Via a Settlement Agreement

In New York, you can file for legal separation with a settlement agreement. This type of agreement is used to settle the terms of your separation. It will outline who will have custody of the children, who will pay child support and alimony, and how property will be divided. If you and your spouse are able to agree on all of these things, a settlement agreement can help make the process easier and faster.

If you are considering a legal separation in New York, you should consult with an experienced family law attorney to discuss your options and help you draft a Settlement Agreement. Your attorney can advise you on the specific provisions that should be included in your agreement, and can help you negotiate with your spouse or former spouse to reach an agreement. If you and your spouse are able to reach an agreement on all issues, your attorney can help you draft a Settlement Agreement that will be binding and enforceable in court.

2. Via a Filing Separation With the Court

This option is often used in contested cases. For example, if you and your spouse cannot agree on the terms of the separation, and a separation agreement cannot be reached, you have to go to court. As there is no agreement, you will need a judge who will then decide the terms of the separation.

In order to file for legal separation via the courts in New York, both spouses will be provided with documents. This document must be filed by both spouses and must include specific information, including the date of marriage, residences of both parties, and a list of all marital assets and liabilities. You must also state whether or not you desire child custody, child support, or alimony. If you have children together, you will also need to file a petition for custody and/or child support at this time. After filing for legal separation, the court will review your case and may issue a decree of legal separation, as well as decide how the assets and other marital property are divided.

two people standing on either side of a line, only the knee down is seen

Can You Get a Legal Separation in New York Without Your Spouse’s Presence?

With legal separations in New York, the following are required:

  • Each spouse should consult with an attorney before signing any agreement. This document affects both parties and it is important that each party understands what they are agreeing to.
  • The agreement should be as thorough as possible. It should include information on all property owned by the couple, as well as child custody and support arrangements.
  • The agreement should be signed by both spouses and notarized.

Given the above, if one spouse refuses to sign the agreement or is not present at the time, the separation agreement cannot be created. This is because New York law requires that both parties consent to and sign the separation agreement in order for it to be legally binding. If one spouse refuses to sign the agreement, or is unavailable, then the other spouse would have to file for a divorce instead.

Consult With a New York Attorney

If you are considering separation, it is important to speak with an attorney to understand your rights and responsibilities. You may also wish to seek counseling to help you through this difficult time. At our law firm, we provide both of these services. So, if you have any questions, please do not hesitate to contact our office.

Gabrielle Hartley LLC Better Apart Divorce and Mediation

Gabrielle Hartley, LLC

If you live in New York or Massachusetts and you are looking for guidance on how to work out your divorce with kids, you may want to speak with Gabrielle Hartley. She is a skilled divorce attorney who can help you understand your rights and responsibilities. She is also able to help negotiate with your spouse through mediation, and come up with a plan that you and your spouse feel is in the best interests of your children.

Contact Gabrielle Hartley, LLC now to get started.

Gabrielle Hartley LLC Better Apart Divorce and Mediation

Gabrielle Hartley, LLC

If you live in New York or Massachusetts and you are looking for guidance on how to work out your divorce with kids, you may want to speak with Gabrielle Hartley. She is a skilled divorce attorney who can help you understand your rights and responsibilities. She is also able to help negotiate with your spouse through mediation, and come up with a plan that you and your spouse feel is in the best interests of your children.

Contact Gabrielle Hartley, LLC now to get started.

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DISCLAIMER: The commentary, advice, and opinions from Gabrielle Hartley are for informational purposes only and not for the purpose of providing legal advice or mental health services. You should contact an attorney and/or mental health professional in your state to obtain advice with respect to any particular issue or problem.

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