The Advantages of Legal Separation vs. Divorce in New York

By River Braun, J.D.

The Advantages of Legal Separation vs. Divorce in New York

By River Braun, J.D.

Spouses often experience periods of difficulty during their marriage. Some individuals may seek marriage counseling or separate for a short time while they work on their marriage. Others may launch right into a divorce filing. In some cases though, there are some advantages in going through a formal, legal separation instead of filing for a divorce right away.

Three people sitting in an office signing documents

Legal Separation Basics

Through a legal separation, both parties can settle matters related to living separate lives while they decide if divorce should be the next move. For example, they can resolve issues related to custody, child support, visitation, spouse maintenance, and property division.

The legal separation agreement allows you and your spouse to live separate lives as if you were divorced. For some spouses, the legal separation allows them to determine how the problems in their relationship will be impacted by living apart before ending the marital union. In some cases, space and time can give spouses the perspective they need to either work on their relationship or decide that ending the marriage is the best way to resolve the problems they've been experiencing.

Advantages of Legal Separation

When you legally separate, the agreement you enter is binding on both spouses. Much of the legal work involved in a divorce is already complete. If you decide to proceed with a divorce, a legal separation can make the divorce process less costly and time-consuming. Once you and your spouse have been living separate and apart for one year, you have grounds for divorce in New York on the separation alone.

Because the marital union is not terminated during the separation, you and your spouse can continue to enjoy some of the financial benefits of being married. For example, you and your spouse continue to be eligible for health insurance benefits under each other's health insurance plans. You may also continue to file joint tax returns during your legal separation. Spouses who are legally separated also retain their entitlement to other benefits, including social security, veteran's, and inheritance rights.

Therefore, many spouses prefer to enter a legal separation to minimize and postpone some of the financial burdens placed on spouses once they divorce. During the separation, spouses have additional time to prepare for the financial changes that accompany divorce so that both spouses are in a better financial position when and if they decide to end their marriage legally.

Finally, some spouses prefer a legal separation for religious reasons. Some religions view divorce unfavorably, or do not recognize divorce at all. Spouses who need time and space to work on their marriage may choose a legal separation to avoid dealing with the religious consequences of a divorce.

Terms of a Legal Separation May Still Be Modified by a Court

It is important to note that some of the terms of your legal separation may be subject to a court decision. While separation agreements are presumed to be valid, a court may modify the terms of the separation agreement if the judge finds that the agreement was the result of duress, fraud, or coercion. Also, if the terms of the separation agreement are inequitable or unfair, a judge may modify the terms of the agreement on the grounds that the agreement is unconscionable. Parties can avoid some of these issues by hiring separate attorneys to negotiate the terms of the legal separation agreement.

A judge may also modify the terms of your agreement regarding custody, child support, and visitation. These issues are always within the court's jurisdiction because the judge has the responsibility of ensuring that the child's best interests are protected.

Matters related to separation and divorce can be difficult to navigate. A legal separation can give you the time you need to make decisions that are best for you and your family without the pressures and emotional turmoil of going through a formal divorce proceeding.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.