During a period of separation prior to your divorce, or during the process of your divorce, you need to know that both your custody rights, and your property rights may be affected. Keep in mind that, if you and your spouse have been living apart from one another for any length of time, you may need to protect yourself–and your property–against actions that may be taken against you.
Not Interested In Going All The Way To Divorce?
If you’re not interested in having your marriage dissolved completely, then a legal separation is a great alternative to a divorce. It may surprise you that legal separation offers many of the same benefits as divorce:
- Resolution of alimony
- Division of assets and property
- Deciding responsibility of loans and other liabilities
There are some very key differences between a divorce and a legal separation that distinguish the latter as being a great option for couples undergoing financial strain while dissolving their marriage. When legally separated, each party may:
- Continue to file taxes jointly
- Remain eligible for social security benefits under their spouse’s name
- Receive coverage under their spouse’s health insurance
One of the most difficult, and complex, processes of divorce or separation is the division of property between the two parties, and things can get complicated quickly. For instance, in community property states, you and your spouse are able to designate certain assets as being “community property” owned by both of you. In common law states, whoever has their name on the deed or the registration is the owner of the asset in question. Remember to keep your best interests in mind when researching your case.
Want To Live Separately Indefinitely?
Once again, note your state laws when it comes to legal separation. There are four different kinds of legal separation:
- Trial separation, which is when a couple decides to live apart in order to make the decision of whether or not to divorce. This type of separation is usually not legally recognized, and anything accrued between the couple during this time will be recognized as joint property.
- Living apart, which is similar to a trial separation except that the couple has made the decision to live separately. Property acquired by either spouse during this period may be determined as separate property by the court, or it may not be ruled as such. State laws do apply when it comes to this kind of separation and property.
- Permanent separation, which is slightly more convenient than trial separation and living apart, as anything acquired over the course of a permanent separation is considered separate property by most states.
- Legal separation, in which the spouses are living apart from each other as in other forms of separation, but a court has ruled on how certain responsibilities–such as childcare, and maintenance of the marital home–will be divided.
Sound Complicated?
If any of this seems overwhelming at all, then know that you aren’t alone. The best advice that any legal professional could ever give one of his or her clients is that you should always keep your best interests in mind. Should you have any doubts that you will not be able to represent yourself well in your legal separation or divorce case, then know that it is imperative for you to contact a good attorney.
The state of New York allows individuals some options to change their status after a marriage that doesn’t necessarily have to end in a divorce. Legal separation, when spouses chose to end their cohabitation, differs from common divorces in a few way. The main difference is in their marriage status; under legal separation the individual parties are considered to be no longer together but remain legally married.
Entering into a separation agreement means either spouse must agree to a contract that stipulates their respective obligations in terms of spousal support, individual rights to property, and their rights to visitation and child custody. These are legally binding terms spouses agree upon, and they may be subjected to legal recourse should they fail to meet their obligations. This is something that could complicate divorce proceedings should a spouse(s) decide to seek a traditional divorce in the future.
It takes attorneys to draft this contract in a manner that satisfies all parties involved. This could include minor agreements, such as the living arrangements of wither spouse, the specific time arrangements for child visitation and the exact distribution of property and any money that could easily be claimed by both spouses. Once it’s agreed upon, the separation agreement is filed with the specific clerk in the New York County where the couple resides. After a year of legal separation, this case is up for review, giving the spouses an opportunity for reconciliation or petition for a no-fault divorce.
In order to enter into this legal separation, both parties must be in agreement that this is the course they wish to take their marriage before the drafting of any legal documents can begin and it must be an agreement that’s officially notarized. At that point it is up to the couple to decide what their status as legally married will be moving forward.
Though legal separation can be done amicably and the result of a decision spouses come to on their own, it’s not the only cause for a potential end to a marriage.
- Qualifications for Separation?
In the state of New York, either spouse can seek legal separation from their partner in the event of adultery, neglect, cruel treatment or abandonment. In the case of wives, they can seek separation should their spouse fail to support them.
In the event of heated disputes or case of outright domestic violence, whether a single incident or a repeated situation in the home, and in the event of false imprisonment in excess of three days, a spouse may file a formal criminal complaint that can result in a summons for the other. In this scenario, a Judgment of Separation could be brought before the Supreme Court of the State of New York to determine which party is at fault and whether the status of a marriage meets the threshold for divorce.
Depending on their findings, a judgment may not grant separation, leaving the door open to petition the court to hasten its proceedings. This can lead a case to move faster than expected, lessening the year-long wait period between separation and divorce. Regardless of the court’s decision, spouses must file for divorce; unlike other states, in New York a year of separation does not automatically grant a divorce.
- Residency While Separated
If filing for legal separation in New York, both spouses must have been married in and reside within the state for the duration of year in order to be applicable for divorce in thee year that follows. In the event that only one spouse resides in the state, the length of time between legal separation and divorce is extended to two years.
However, there is no time constraint placed on a couple to divorce within the state. Once a marriage within the state of New York is finalized, the opportunity for legal separation is a viable option from that point forward provided they meet the threshold as stipulated in the Domestic Relations Law in the Consolidated Laws in New York.
When married couples break up in New York City, their options are limited as to how they can proceed. Many marriages are dissolved through divorce, but, in some other instances, the couple may instead choose to separate. This is more than simply going their own ways. It involves a legal separation that helps to establish that they are no longer responsible for one another.
What is a Legal Separation?
While a legal separation may be drafted by the couple, on their own, it typically requires the assistance of an experienced New York City attorney. This is because it often involves some of the same issues that would be addressed in a typical divorce. The division of property, financial responsibilities, and the custody of any minor children would all have to be resolved in a legal separation.
Also similar to a divorce, a separation is initiated by one party filing a complaint against the other in court. The complaint will name both the plaintiff and defendant, as well as any minor children involved in the situation. Details about the children and separating couple will also be included, such as birth dates and the date of the marriage. The complaint will also explain why the separation is being sought and how residency will be affected for the parties involved. The plaintiff will also have to state what remedy is being sought through the separation.
The grounds for a legal separation are:
- Adultery
- Abandonment
- Imprisonment for three years or longer
- Neglect or failure to provide support to a wife
- Inhuman or cruel treatment
In cases where the Supreme Court of the State of New York grants a Judgment for Separation, the grounds will encompass the same grounds as divorce, but with slight variations. For example, a charge of abandonment may be for under a year. The condition of nonsupport for which a separation may be granted may not be used in filing for a full divorce.
Some people believe that a couple will be automatically declared divorced, after one year of legal separation. While that may be true in some jurisdictions, this is not the case in New York City. A divorce filing must still proceed, but, after one year of separation, either party may petition the court for a “no fault” divorce.
Why Do Couples Pursue a Separation Instead of a Divorce?
The most common reason couples opt for a legal separation is to make the divorce easier, down the road. In the meantime, they can see how the separation affects their lives and if their relationship problems really are irreconcilable. In instances where the couple decides that they do want to divorce, the separation serves as the grounds for the divorce and the process is simplified. In the divorce, the terms of the separation will typically be upheld as the divorce obligations. Whatever custody and support obligations were agreed to in the separation will continue uninterrupted, following the divorce.
Another reason to choose a separation is that it can allow one spouse or the other to retain benefits that would otherwise be terminated by a divorce action. For instance, one spouse would still be eligible for healthcare coverage on the other’s policy. Additionally, the Uniformed Services Former Spouse Protection Act and Social Security Administration require that a couple must remain married for 10 years in order to be eligible for benefits. By taking the legal separation instead of the divorce, the couple can still retain their eligibility for these types of programs.
Another factor that can influence the couple’s decision not to divorce may be the beliefs of their religion. Many religions either frown upon divorce or outright prohibit it, because they feel it violates the sanctity of marriage. To avoid scorn from their church and to also end an intolerable relationship, the couple may legally separate. While they can live separate lives and end their relationship, they’ll still be married in the eyes of their church. This helps the couple obey their religious vows , while also doing the best thing for their family.
In some cases, a legal separation gives a couple an opportunity to see how they really feel about ending their relationship. It provides them with relief from a destructive relationship, while still allowing for the possibility of reconciliation. When divorce does become necessary, the couple can pursue that option without the need to reevaluate how assets and debts are divided or how custody will be affected. The legal separation has already dealt with these issues.
Divorce can be a fairly sudden decision. Both parties can simply decide they would like to move on. They can choose to file a court case and then wait a few months until it is completed. This is often a good choice for those who have been married a short time and have come to realize this was not a good choice for them. However, in other instances, a marriage that isn’t quite working out can be far more complicated. Sometimes, people decide that it makes sense for them to seek out a temporary separation. A separation has several things in common with a divorce. Like the divorce, the separation agreement is one that allows both parties to move to another place. It also covers many matters related to a divorce such as who gets custody of the children and what kinds of financial payments are required by both parties. However, a separation is not a divorce. Each person involved in the process cannot get married again unless they have a divorce. In New York City, a separation agreement is one of the first steps towards the divorce. This is why it should be thought about carefully and done legally from the very start.
Creating a Legal Enforceable Document
Before doing anything else, the parties involved should consult with a lawyer. New York City separation lawyers can help by having both parties sit down together in a mutually agreeable setting. Once both parties are present, the lawyer can begin to work out a separation agreement that covers all necessary specifics related to the separation agreement. A lawyer will often begin by taking a close look at the finances of the couple. This can affect many things. For example, one member of the couple might want to continue staying in midtown while another may want to move to a more suburban setting in New Jersey or westchester county. The agreement can be crafted in a way that will make it possible for each party to function going forward. A lawyer will also help determine what kind of temporary child custody arrangements may be necessary right now in order to help any children of the marriage stay in familiar and comforting surroundings. A separation can resemble a divorce in that it will frequently address what each party must contribute financially once the agreement is signed. It may also deal with issues such as the completion of a degree by one party and payment of private school tuition and medical bills by the other spouse.
Legal Implications
All parties should keep in mind that a separation is a very serious matter. While not a divorce, it contains provisions that can be enforced legally. It also means that both parties are taking steps that can lead to a legal divorce in New York state after a year. This is why the agreement should be carefully thought about before deciding to go forward. A judge will often see the separation agreement as the blueprint for any sought after divorce. This is why it is crucial for both parties involved to consider having their own personal legal counsel. The legal counsel can offer much needed advice about how to craft the agreement. They can also offer advice about what is required by all concerned once the agreement is filed with the county clerk’s office. Each party should keep in mind that the courts consider this a legally enforceable document under New York state laws. If one party does not live up to the terms of agreement, the other party can go to court and have the court enforce the agreement.
Moving Forward
A separation can be in place for many years. New York City courts recognize that a divorce may not be the right course of action for all residents. In that case, the parties can agree to the terms of separation and keep them in place for many years if that is what they would like to do. At the same time, the court system realizes that many people might wish to move on to a new situation and think about getting married again legally. In that case, this agreement can serve as the basis for a divorce application. In New York, if both parties have lived apart for at least a year, they can head to the court and ask for a legal divorce. The separation agreement can serve as the foundation for the required legal divorce process.
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