The Advantages of Legal Separation Vs. Divorce in New York

By Wayne Thomas

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.

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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.

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References

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Marital Status: Difference Between Separated & Divorced

Most states recognize three ways to legally alter a marital relationship -- separation, divorce and annulment. Among these, separation and divorce are the most commonly used. A legal separation involves many of the same legal complexities that divorce does. Divorce and legal separation are also available for domestic partnerships and civil unions in states that recognize these relationships. Always check your state laws for requirements for obtaining a legal separation.

What Are the Benefits of Legal Separation Vs. Divorce?

Legal separation and divorce are two options for married couples who wish to part ways. According to the Centers for Disease Control and Prevention, roughly 34 percent of marriage relationships ended in divorce as of 2011, making this an increasingly significant issue. Legal separation offers married couples with serious relationship issues an opportunity to separate, just as they would in a divorce, but without the legal finality provided by a divorce. This provides a number of benefits to spouses and families.

Definition of a Legal Separation in Iowa

Couples sometimes opt for legal separation rather than divorce because of religious beliefs held by one or both spouses. Other couples choose legal separation to allow one spouse to retain health insurance coverage under the other spouse's policy. Many couples hold the mistaken belief that because they have lived apart for years or even decades, they are legally separated. However, in a state like Iowa that recognizes legal separation, unless a petition has been filed, this is not the case. Couples may file for legal separation independently, with legal advice or by using resources available from online legal documentation providers.

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