Difference between Divorce and Legal Separation: Unlike divorce, which legally ends a marriage, legal separation is an entirely different procedure that helps the couple divide their assets and parental responsibilities without ending their marriage. Sounds complicated? It is. But we are here to help you untangle the technicalities and peculiarities of New York Family Law to know how to proceed with your situation.
What’s a Legal Separation in New York?
We all know what a divorce is. Spouses go to court (either on their own or with the assistance of a lawyer) to finalize the dissolution of their marriage and once again become single and available to new relationships. But what is a legal separation? Even though not all states offer this option for dysfunctional marriages, the definition is similar for those who do.
Legal separation is a legal procedure very similar to a divorce. However, it does not dissolve a marriage. Spouses going through a legal separation cannot marry another individual unless they undergo a formal divorce proceeding.
What does a couple get after a legal separation?
- living separate and apart
- a legal separation agreement memorizing their decisions on child custody, support, and property division
- enforcement of the provisions of the legal separation agreement
- an option to proceed with a divorce after a year of separation or rekindle their marriage
What does a couple get after a divorce?
- a separation agreement memorizing their decisions on child custody, support, and property division
- a final order by a judge finalizing their divorce
- enforcement of the provisions of the separation agreement
- a right to remarry any time after a judge signs a divorce decree
As you can see, what distinguishes a divorce from a legal separation is whether spouses remain married or not. As a result, the end goal is different. In a divorce, spouses get a final order dissolving their marriage for good. A legal separation, in contrast, enforces a legal separation agreement while providing the possibility for a divorce in the future.
Should I Choose a Legal Separation or Divorce in New York?
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The answer to that question lies in the couple’s rationale for deciding to break up. Usually, spouses opt for a legal separation for the following reasons:
- Religion. Spouses practicing a religion that disapproves of getting divorced may choose separation as a compromise between having an unfulfilling relationship and separating for good.
- Finances. Married couples have financial privileges, such as filing joint tax returns and being eligible for health insurance or social benefits through each other’s work. Remaining legally married lets them keep their benefits as long as their marriage stands.
- Practicality. New York divorces are notoriously brutal in terms of sky-high legal fees and lengthy court procedures. That’s why many couples may prefer to sort out their custody and property division issues with their lawyers or mediators, leaving getting a divorce for better times.
- Sentimentality. When living together becomes unbearable, a temporary separation can help. Those spouses who entertain an idea of reconciliation may want to separate legally to ensure that the other side will carry out their part of the deal. The legal separation agreement then puts the decisions regarding their children and property in place.
If none of these reasons works apply to you, filing for divorce may be what you need at the moment.
Can Legal Separation Become a Divorce?
Actually, yes. What’s good about legal separation is that it can ease a couple into an uncontested divorce. If a couple has a notarized legal separation agreement, a conversion divorce is possible.
Basically, spouses have settled all the divorce-related issues and don’t need to spend time negotiating a custody arrangement and distributing marital assets. Couples can seek a conversion divorce after they have lived separately for at least one year.
Is Legal Separation More Difficult than Divorce?
Both court procedures are straightforward. The complexity comes from the details of each case. A lot depends on the couple’s amicability and ability to negotiate important decisions as a team.
Usually, an attorney or a mediator is hired to establish an enforceable legal separation agreement. However, New Yorkers can use online divorce services to fill out a separation agreement without an attorney. After both spouses sign and notarize their legal separation agreement, it can be filed with the court.
What are the Requirements for Legal Separation in New York?
If spouses intend to contest their separation, each must hire an attorney because only uncontested cases are eligible for a Do-It-Yourself procedure. Here are the requirements for legal separation in New York.
- Grounds for divorce. For a legal separation, as for divorce, there are four fault-based reasons and one no-fault reason: adultery, abandonment, cruelty, imprisonment, and incompatibility.
- Residency. The residency requirement is met if (1) either spouse has lived in the state for at least one year before filing the paperwork; (2) at least one spouse was a New York resident for at least two years before filing.
- Living separate and apart. Filing for a legal separation in New York doesn’t require spouses to separate beforehand for any specific length of time.
- Legal separation agreement. Spouses decide on custody, support, and distribution of assets and debts and memorialize the terms in a notarized document. A notarized legal separation agreement is part of the paperwork filed with the court, along with the separation petition.
What are the Requirements for Divorce in New York?
In New York, the requirements for divorce are similar to the ones for legal separation, except for the living separate and apart clause. New York Family Law requires spouses to file for divorce only after a separation period. It applies to a no-fault divorce and requires proof of separation.
If a couple has been legally separated and has their separation agreement, spouses must wait for at least one year from the date they signed it before starting the divorce process. If a couple has separated in non-legal terms and wants to file based on incompatibility, they must wait at least six months from the separation date to apply for divorce.
Made up your Mind?
Whatever your choice, various options can help you initiate your separation/divorce case. If you and your spouse are willing to negotiate your differences, you can expect to bring the cost of your divorce or separation down significantly. For one, you can prepare for your legal separation or divorce over the Internet, using an Internet divorce service to fill out the divorce papers online. It’s a convenient and cheap process.
Another variant is to use the combination of web-based divorce companies and legal counsel to ensure your rights are not violated in the separation agreement. Getting a divorce can be relatively quick, easy, and affordable if both spouses cooperate.