Legal separation in NY is the primary alternative for couples who aren’t ready to enter into a divorce. Divorce is a daunting prospect with long lasting ramifications. When action is appropriate, but a divorce is not necessarily the next logical step, a legal separation in NY may be a viable choice.
The reasons couples might choose a legal separation in NY rather than a divorce vary. Some couples are experiencing marital issues that require intervention. These couples may even need to enter into a formal Separation Agreement. However, legal separation leaves open to the possibility of reconciling in the future.
Legal Separation In NY — An Alternative To Divorce
Couples such as those mentioned above may enter what’s called a “therapeutic separation.” Such couples can use the period in which they are living apart to address marital issues, usually with a professional, and work on improving the relationship and ultimately remaining together.
Other couples may not be emotionally or psychologically prepared for the finality of a divorce. These couples may want to enter a legal separation in NY as a transitional phase before moving forward with a divorce.
Still other couples may have certain interdependencies, financial and otherwise, that would be so disrupted by the legalities of a divorce that legally separating is a logical alternative.
While these are only some of the reasons spouses might choose to separate rather than divorce, a legal separation in NY is a good alternative when the current living circumstances are untenable but the ultimate resolution is not yet known.
For couples like these, obtaining a legal separation in NY can be a gentler alternative that nevertheless has the force of law behind it.
You Have Two Main Options For Getting A Legal Separation
Couples have two options for obtaining a legal separation in NY—you can generate the agreement together (often with the help of a mediator to ensure the agreement addresses all of your concerns and meets legal requirements), or you can seek a judgement of separation.
The judgement of separation must be granted by the Supreme Court of New York, which requires a level of formality comparable to obtaining a judgment of divorce, so most couples do not opt for this method.
The better choice for couples is to fashion and file a separation agreement in the county in which they live. Not only will the agreement reflect what they have decided together, the act of filing best preserves the agreement so it may be relied upon should later legal proceedings ensue.
Legal Separation In NY — How Is It Different From Divorce?
The main difference between legal separation in NY and divorce in NY is that couples technically remain married—reconciling with your spouse is possible without requiring a new marriage license and other paperwork.
However, a legal separation agreement is similar to a divorce agreement in many aspects, and a legal separation agreement in NY can be just as comprehensive and detailed as the Stipulation of Settlement required for NY divorces.
While the agreements are comparable (if not virtually identical), acquiring a legal separation in NY does not require the numerous forms, papers and fees of a NY divorce.
A legal separation should not be entered into lightly, but all the aspects of a legal separation can be determined through mediation just as though a divorce were being mediated. In fact, if couples later decide to divorce, the filed separation agreement can serve as the agreement for divorce.
What Requirements Must A Legal Separation Agreement Meet In NY?
In order to be enforceable, a legal separation in NY must meet very precise standards, both in the way the agreement is written and in the language used in the agreement.
Meeting these requirements is especially important if you have small children who are going to be affected by a custody arrangement in the separation.
You want to ensure that you and your children are protected and receive the financial support necessary to maintain a level of stability while transitioning and settling into a new situation. It is also important that certain rights and privileges are protected by your agreement.
For example, if you want to have joint physical custody of your children, it is best to have a clearly articulated and written parenting plan prior to moving into a different residence.
For these reasons, having a mediator or other legal professional draft your document is critical; a legal separation in NY may not be upheld if the document is not crafted appropriately.
Drafting legal separation agreements is one of the many services that Alexander Mediation Group provides.
Why Would I Want A Legal Separation In NY Instead Of A Divorce?
Some couples still hope to reconcile in the future, but they know that the current situation cannot continue.
A legal separation is a middle ground between marriage and divorce where couples can work, through mediation, as well as with a marriage or couples therapist, towards reconciling while still being legally protected.
Other couples may want to obtain a legal separation for financial reasons—for instance, some medical insurance providers will allow your spouse to stay on your insurance (or vice versa) if you have a legal separation instead of a divorce.
Can I Get A Legal Separation In NY If My Spouse Can’t or Won’t Participate In The Process?
The short answer is yes—this is the judgement of separation process that requires the Supreme Court of New York to grant a judgement. It is often just as lengthy (and expensive) as obtaining a judgement of divorce, so it is seldom used.
Similar to divorce, there are precise reasons required to obtain a judgement of separation when the other party can’t or won’t cooperatively participate in the process.
Although some of these reasons apply even when the other party is amenable to mediation or otherwise cooperating, mediation is almost always recommended above all other options because of the legal, psychological and even spiritual benefits to you and your family (not to mention financial!)
Here are the different reasons you can use to obtain a legal separation in NY through a judgement of separation:
- Your spouse has abandoned you (literally or constructively)
- Your spouse is not providing you the financial support you need
- Your spouse has cheated on you
- Your spouse has gone to prison
- Your spouse is abusing you or treating you cruelly
What Are The Drawbacks Of A Legal Separation In NY?
The main drawback is that legal separation agreement in NY is not as easily enforceable as a divorce agreement. Although the legal separation agreement is enforceable under contract laws (just like any other contract), a legal separation agreement does not have the “teeth” of a Stipulation of Settlement (the agreement filed with a NY divorce).
It lacks the same stringent enforcement parameters — and enforcing something like child support or spousal support can be quite difficult.
A legal separation does not sever the financial involvement of parties in the same way a divorce can, nor does it allow parties to file taxes individually (although “married filing separately” is a filing status available to married people).
With a legal separation in NY, parties are still married and therefore are not free to marry other people until a divorce has been obtained.
Does A Legal Separation In NY Need To Be Filed With The County Clerk?
No, but the court will have a much harder time enforcing the terms of the separation agreement if it isn’t filed with them.
Filing the agreement for legal separation in NY protects you, your children, and your assets. Filing with the county clerk also protects the agreement itself—the court maintains the final agreement so other versions can’t be confused with the final agreement.
The court keeps the filed copy of your separation agreement in their records, so in the event you ever need to retrieve a copy (or have lost yours), it is there for safekeeping.
To file with the court, you’ll need to do a few things—obtain an index number (for a nominal fee paid to the court) and pay for two copies of the agreement (one for each party).
If you decide you want a legal separation in NY while you’re going through the mediation process, we draft the document for you and file it for you, saving you time and the aggravation of navigating the NY court system.
Can I Go Back To Being Married Or Move Forward With A Divorce If I Get A Legal Separation In NY?
Yes, both are possible.
The main benefit of obtaining a legal separation in NY is that it’s not final—if you are able to reconcile with your spouse, you can have the legal separation agreement revoked and return to the marriage.
Alternatively, if you decide moving forward with the divorce is right for you, you can petition the court for a full divorce.
If you and your spouse remain separated and live apart for over a year, either you or your spouse can petition the court for a full divorce based on the length of the separation, using separation as the grounds for your divorce.
There are multiple grounds for divorce in NY, so couples wishing to move forward with a divorce before the requisite time for the grounds of separation can opt to rely on another cause.
As NY offers the “no-fault” option of an “irretrievable breakdown of the marital relationship” for a period of 6 months or longer, which parties must simply stipulate to as accurate, almost all NY mediation couples use that as their grounds for divorce.