Why You Might Want to Legally Separate Instead of Getting Divorced

Many couples who are considering filing for divorce decide to legally separate instead. While it can be a preliminary step to allow the parties time to decide if divorce is necessary, it can also have other benefits. If you are considering a separation, it is important to confer with a family law attorney to ensure that you create an enforceable separation agreement that legally protects you and your family.

The process for a legal separation is similar to a divorce, but it does not terminate the marriage. Whether you are in a same-sex or opposite-sex marriage, both parties must make decisions about the division of assets and debts, child custody and visitation, and other important matters.

A legal separation may provide certain advantages:

  • It allows your spouse to remain on your health insurance.
  • It allows you to retain certain tax benefits.
  • A legal separation may not be as disturbing to your religious or cultural beliefs.
  • You and your spouse can live apart for at least one year so you can file for a no-fault divorce. You also have the option of filing for a no-fault divorce alleging irretrievable breakdown of the marriage for at least six months prior to filing the divorce action.

To be enforceable under New York law, a separation agreement must be in writing, signed by the parties and notarized. Although the law does not require both parties to be represented by legal counsel, it is highly advisable that you seek the advice and guidance of a knowledgeable family law attorney.

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