For most people, the decision to leave their marriage is not an easy one. Rather, it is something that is carefully considered over a long period of time. If you are thinking about whether legal separation vs. divorce might be right for you, it’s important to understand the differences between the two. While divorce is final, separation allows you to live apart from your spouse — and it can be a trial run to determine whether you wish your marriage to end or reconcile.
Some couples are not ready to end their marriage but wish to live apart. Unlike a divorce, which ends your marriage, a legal separation essentially puts your marriage on hold while it remains intact. When spouses separate, they both move to different homes and live separate lives. This can provide the opportunity for reflection before proceeding toward divorce — it can also provide continued access to healthcare benefits and tax advantages.
A separation agreement must be drawn up that outlines custody matters, specifies what is marital property, and defines support obligations. This document becomes legally binding once it has been signed by a judge. The agreement should also specify the terms under which the agreement can be used as the basis to obtain a divorce. However, if you wish to use the separation agreement to divorce, you are required to live apart under the terms of the agreement for at least one year. Both spouses must agree to the separation agreement.
A less common way to obtain a legal separation is when one spouse files an action for separation with the court. This is typically done in contested proceedings. In order to obtain a judgment of separation, a party must establish cruel and inhuman treatment, abandonment, non-support, adultery, or imprisonment.
Divorce permanently ends a marriage. It involves cutting all legal ties with your spouse and often requires more extensive legal proceedings than a separation, depending on the issues involved. During divorce proceedings, there are a variety of issues that must be decided before the court will issue the final decree. Based on the facts of the case, these issues include child custody, child support, spousal support, and property division.
Couples can divorce in two ways — by settling their case or litigating it in court. By entering into a settlement after reaching an agreement concerning the issues that must be decided in negotiation or mediation, it is possible to divorce without ever entering a courtroom. However, if spouses are unable to resolve the issues that must be determined, a judge will decide the outcome during the litigation process.
Importantly, a spouse can obtain a divorce even if the other does not consent to it. While New York is a no-fault state, all that needs to be shown to obtain a divorce is that the marriage has broken down irretrievably for a period of at least six months.
The decision of whether to pursue legal separation vs. divorce is unique for every couple who wishes to part ways. For instance, some might opt for a legal separation if they are not ready for the finality that comes with divorce. Others might choose divorce when there is no chance of reconciliation and they wish to begin a new life. It’s best to consult with a knowledgeable divorce attorney to understand which avenue might be best in your specific situation.
Some other reasons couples consider legal separation vs. divorce can include the following:
In addition, a legal separation can allow you to retain certain benefits from your spouse’s employment, such as Social Security or military benefits. While a spouse would not be eligible for these benefits until the marriage has lasted for ten years or more, a legal separation lets you remain married until you reach the necessary point.
If you are considering legal separation vs. divorce, it’s crucial to have a knowledgeable divorce and family law attorney by your side who can advise you regarding your options. At Duke Law Firm, P.C., we are dedicated to providing our clients with reliable representation for a wide variety of matrimonial and family law matters. Offering personalized legal services in every case, we welcome you to contact us today to schedule a consultation to learn how we can help.
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