The Advantages of Legal Separation Vs. Divorce in New York

by Wayne Thomas
    A legal separation may allow a couple to remain eligible for military benefits.

    A legal separation may allow a couple to remain eligible for military benefits.

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    The decision to dissolve a marriage is not meant to be taken lightly. Due to the sweeping effects that a divorce can have on a couple's life, either spouse may be unsure as to whether such a bold change in relationship status would be beneficial. For that reason, New York offers legal separation as a way to allow a couple to experience life apart for a period, or as a long term alternative to divorce.

    Overview of Separation

    In New York, a legal separation is available to a married couple that no longer wishes to live together. In contrast to simply living apart, legal separation formally sets out the rights and responsibilities for each spouse in matters such as child custody and support, spousal support and property division. The main difference between legal separation and divorce is that a a legal separation does not actually dissolve the marriage relationship and the parties remain legally married. In New York, a legal separation can by accomplished either through a written agreement by the parties or by going to court and requesting a judgment of separation.

    Precursor to Divorce

    One benefit to legal separation is that it gives the parties an opportunity to see how their current problems and overall relationship is affected by living apart. In addition, much of the legal work involved in coming to an agreement in separation can be used to reach a later divorce settlement. Further, in New York, legal separation lasting for at least one year -- whether done upon agreement or by judgment from the court -- is a recognized basis or "grounds" for divorce. This allows the court to expedite the divorce process; in many cases, the rights and responsibilities of the parties during separation can be "converted" into post-divorce obligations.

    Benefit Retention

    Because a couple maintains their married status while being legally separated, health plan coverage that would otherwise terminate upon divorce will likely continue. Further, spouses typically must stay married for at least ten years to be eligible for benefits under the Uniformed Services Former Spouse Protection Act, and the same requirements apply to eligibility for certain Social Security benefits. In these cases, a legal separation can be highly advantageous in protecting both spouses' entitlement to benefits.

    Religious Reasons

    Some spouses choose legal separation as an alternative to divorce in order to stay in good standing with a church, as some religions either do not allow divorce or look unfavorably upon it. A legal separation can be beneficial in these cases as it reduces the conflict that could arise if the couple were faced with the difficult decision of either continuing to live together in disharmony or renouncing their religious practices.

    About the Author

    Wayne Thomas earned his J.D. from Penn State University and has been practicing law since 2008. He has experience writing about environmental topics, music and health, as well as legal issues. Since 2011, Thomas has also served as a contributing editor for the "Vermont Environmental Monitor."

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