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The pros and cons of separation

| Feb 11, 2021 | Family Law

Divorce may be a life-altering decision. Couples, however, may enter a legal or trial separation before they take this major step. This family law option has advantages and disadvantages.

Separation defined

A legal separation in New York requires that the spouses live apart and enter a voluntary written agreement governing their living arrangements. Separation can last for as long as the spouses want but they must live apart for at least one year if the separation is the basis for their divorce.

Separation agreement

Agreements typically cover property and debt division, child custody and visitation and child support. Agreements can also cover other costs and martial issues. A family court may enforce this agreement.

Spouses may enter this agreement if they are New York residents and the reasons for the separation arose in this state. Otherwise, at least one of the spouses had to live continuously in New York for at least two years before filing for separation. Or one of the spouses lived in New York continuously for at least one year before filing and they got married in New York, lived in the state when they married or the reason for separation occurred in New York.

Advantages

Legal separation may have these advantages:

  • Allows time and distance for a couple to determine whether they want to divorce.
  • Provides time for marriage counseling.
  • Continues coverage under the other spouse’s health insurance.
  • Counts as years married for eligibility for the other spouse’s Social Security benefits. The marriage must be at least 10 years for eligibility.
  • May not violate religious convictions.
  • Courts may use separation agreement as the basis for a conversion divorce.

Disadvantages

There may also be disadvantages:

  • Legal separation does not end a marriage and spouses continue their financial and legal relationship. Practical aspects of their lives are still connected.
  • Remarriage is prohibited during separation.
  • Separation is a bad option if there was marital abuse.
  • There is a one year wait for divorce based on a separation agreement.

Other options

Spouses may consider other options if legal separation does not meet their needs. They can live separately without entering a written separation agreement. Or a couple may also live separately and file petitions for child custody, visitation, and support in family court.

Spouses can file an uncontested divorce where they settle all issues. They may also file for a contested divorce if there are disagreements on its terms.

There are many options for separation and drafting separation agreements may be complicated. An attorney can help a spouse consider this matter and prepare a valid and fair agreement.