What Is Legal Separation in New York?

When a married couple is having marital issues but they are not sure if divorce is the answer to their problems, they can choose a legal separation in New York. Getting a legal separation is also beneficial when the couple cannot financially afford to get a divorce, for religious reasons, or to continue to enjoy financial benefits like joint tax returns and health insurance.

A couple is not legally separated just because one person moves out of the marital home or the couple starts living separate and apart lives while remaining in the same home. Living separate and apart means each person is living their own life without the normal obligations associated with being married like sleeping in the same bedroom and being intimate with each other. In other words, the couple essentially becomes roommates who have their own separate lives.

To be considered legally separated, the couple must start the process of filing for separation in NY and sign a legally binding separation agreement.

Separation agreement on a table

What Is the Process for Getting a Legal Separation in New York?

The first step is for each party to consult with a separation agreement and divorce lawyer. To be considered legally separated in New York, the couple must create and draft a separation agreement and both voluntarily sign the document so it can be legally enforced should one party violate the agreement.

What Information Needs to Be in a Separation Agreement?

The best way to decide what information to include in a separation agreement is to look at what matters must be resolved if you were filing for divorce. You want to include details about such aspects, including but not limited to:

  • Child Custody: How will you and your spouse share custody of your minor children? Will you split parenting responsibilities equally with equal time with each parent? Will one parent serve like a custodial parent, where they have the children more often and the other parent less often?
  • Child Support: How much will you pay or receive for child support? If you are agreeing to equal parenting time, then child support may not be necessary, as long as you include in your separation agreement that each parent is responsible financially for the children while they are in the care of that parent.
  • Child Access and Visitation Schedule: You and your spouse will need to decide how you want to split parenting time. This is referred to as child access. You will want to create a visitation schedule that details who gets the children on weekends, holidays, school breaks, and other such times throughout the year.
  • Spousal Support: If one person is a “stay-at-home” parent, you need to decide how much, if any, spousal support you should pay or receive. You could also include special terms and conditions, such as the person receiving spousal support will make an effort to find gainful employment in a specified period of time.
  • Division of Marital Assets: You and your spouse need to decide how you will split and divide marital assets such as bank accounts, stocks, bonds, investments, real property, real estate, and so on. If you and your spouse are not sure, you can still include wording that addresses liquid assets.
  • Marital Home: Who will get to remain in the marital home? Is the home large enough so both parents could remain in it with the minor children, but live separate and apart lives?
  • Decision-Making for Minor Children: Who will be responsible for making major decisions for your children? Do you need to consult with the other parent first, or are they okay with letting you make the decision and informing them of it later?
Gavel in the foreground, couple talking in the background

In addition to these details, there are other details specific to separation agreements that you will want to include, such as:

  • Health Insurance: Who will pay for health insurance? If you are on your spouse’s policy, will you remain on it or do you have to get your own?
  • Social Events/Activities with Children: Who will attend school and social events and activities? Are you agreeable to allowing the other parent to attend as well or would you prefer you take turns?
  • Vacations and Travel with Children: Do you or your spouse need to obtain permission from each other before taking children on vacation or traveling with them out of New York?
  • Division of Marital Debts: How will you split and decide who is responsible for which bills and debts you have incurred together, such as the house payment, car payment, utilities, and credit cards?
  • Home Maintenance and Upkeep: Who is financially responsible for maintaining the marital home?
  • Insurance Policies: Who is going to pay for homeowner’s insurance, auto insurance, and life insurance?
  • Wills and Trusts: Do wills and trusts need to be updated to reflect changes because of the separation?

Please keep in mind, this is just a general overview of the different types of details you will want to include in a separation agreement. The exact details of your agreement can and will vary based on the specific circumstance you and your spouse are filing for separation in NY.

Are We Still Legally Married After Obtaining a Legal Separation in NY?

A legal separation in NY does not dissolve your marriage. You are still legally married while separated. Should you and your spouse decide while living apart that you want to try to save your marriage through counseling, dating, and other such interactions, you are free to do so.

In the event you decide to start living together and reconcile, then your legal separation agreement can be written so that it becomes void. However, some couples choose not to do this, but rather require both parties to sign another agreement dissolving the separation agreement. This way, if the reconciliation falls through, the couple does not have to go through the process of filing for separation in NY again.

Furthermore, some couples legally separate but have no intention of ever reconciling, as when they are not allowed to get divorced due to religious reasons. Even though they are still legally married, the couple will need to decide whether they can date and see other people since they are no longer living together and have no plans to reconcile.

What if We Decide We Want to Get Divorced?

Getting a legal separation can be a precursor to getting a divorce in the future. However, you must have lived apart for a period of one year from the date your separation became legal in New York. Once you have met the waiting period, the divorce process can often be resolved quickly and in a matter of months.

Do We Have to Create a Divorce Agreement to Get Divorced?

If you already have a legal separation agreement in place, you can request that this be converted into your divorce agreement. However, the courts may deny the request in cases where the separation agreement favors one party over the other.

To illustrate, let’s assume the separation agreement is written so that you will retain the marital home and a sufficient amount of marital assets which would give you a financial advantage over the other party. The court will not allow this and could preclude certain aspects of the separation agreement from being converted into the divorce agreement.

Alternatively, some couples choose to request their separation agreement be kept apart from their divorce decree and divorce agreement. In this case, the separation agreement is said to survive the divorce decree. The terms and conditions of the agreement continue to remain in effect after the divorce is granted.

Woman staring at her wedding ring - divorce concept

As you can see, filing for legal separation vs. divorce in NY can be beneficial in certain situations. Before deciding whether separation is best for you and your spouse, you each should consult with a qualified lawyer to fully understand legal separation laws in New York.

To decide whether getting a legal separation or divorce in NY would be best for you, including Queens, Brooklyn, Manhattan, Jamaica, and NYC, please feel free to contact Joseph A. Ledwidge PC at 718-276-6656 to schedule a consultation today!

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