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Should You Get a Divorce or a Legal Separation in Nassau County or Suffolk County on Long Island?

Now that you (or both you and your spouse) have officially decided that your relationship is beyond repair and a divorce is the only solution, there are additional concerns. You have likely been asked by friends and relatives if you are going to divorce or just separate. Perhaps you had no idea there was a difference, or perhaps it has been the last thing on your mind. However, you should be aware of the benefits and disadvantages of both so you can make an educated decision about whether a divorce or legal separation is right for you.


What is a Legal Separation?

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In order to become legally separated, you and your spouse would likely enter into a Legal Separation Agreement. This is a binding agreement, signed by both parties in front of a notary, which will address all the same major issues that would be addressed if you were to be granted a divorce. A separation agreement is a strong legal document, and as such it is extremely important to have the assistance of an experienced divorce attorney to create it with your input. Once the agreement is drafted, signed by both you and your spouse, and notarized, it can be filed with the Nassau County clerk or Suffolk County clerk in the county in which you reside. Filing the agreement ensures that all obligations are on record with the court and it will be easier to enforce in the event either you or your spouse decide not to abide by the agreement.

What are the Benefits of a Legal Separation?

There are a number of important benefits to a Legal Separation, including health benefits, tax, benefits and religious implications.

Health Insurance. One of the most daunting things you may have heard about a divorce is the potential loss of the health insurance benefits to which you have become accustomed. In most instances the non-policy holder spouse will lose his or her health insurance coverage upon entry of the final judgment of divorce. This is extremely important to most people, especially those with existing medical conditions. Fortunately, a legal separation usually avoids this problem. Most health insurance policies continue to provide coverage to both spouses upon a legal separation, even if your spouse is the policy holder. However not all insurance policies are the same, so it is important to verify this with your spouse’s insurance provider if you wish to maintain coverage.

Taxes. You can also continue to file joint income tax returns. As you are likely aware, filing joint income tax returns provides many benefits to a married couple. Married couples get a higher standard deduction, tax credits for children, and may not be required to pay federal estate taxes on the transfer of assets to a spouse. As a legally separated couple, you can continue to file joint income tax returns.

Social Security. Your marriage must last at least ten (10) years in order for either you or your spouse to qualify to receive a portion of the other’s Social Security payments. If this is a concern for either of you, a legal separation might allow the marriage to last for the requisite ten (10) year period to collect on your spouse’s Social Security payments.

Religious. If you or your spouse is religious and your religion frowns upon divorce, you may opt to enter into a legal separation agreement for religious reasons.

What are the Down Sides of a Legal Separation?

Like anything else, a Legal Separation has its down sides as well. Although legally separated, you are still legally married. While you and your spouse no longer live together, and you may not even have contact with one another, there has been no judgment of divorce entered with the courts and therefore your marriage has not been dissolved. This has the potential to create problems either immediately or years down the road.

Support Implications. Even though your separation agreement may have established support payments, unless they are incorporated into a binding judgment, you or your spouse may wish (or need to) seek support which was not contemplated in your original agreement due to a change in circumstances at the time you convert your agreement to a divorce. Despite a waiver of spousal support in a separation agreement, a spouse can seek spousal support at the time of the divorce if the waiver of support is unconscionable or would otherwise result in the spouse becoming a public charge. An easy example would be a spouse suffering a major physical impairment or disability between the date of the legal separation agreement and the time of the divorce. It should also be noted that when it comes to child support your separation agreement may be revisited if there is a significant change in income, significant time has passed, or if your separation agreement does not adequately provide for the children’s needs.

Remarriage. Because you are still legally married, you will be unable to remarry until a divorce has been finalized. At the time you enter into a separation agreement, remarriage is likely not even a thought on your mind. But life can change in the blink of an eye. You may find yourself in a new relationship two years later with a partner who wants to marry. You must first get divorced in order to move ahead with that relationship, which may present a problem if you fall out of touch with your spouse or your spouse refuses to sign divorce papers in the future.

What is a Divorce?

A divorce, which is granted in Nassau County or Suffolk County court, is the legal termination of a marriage in New York. Once the judgment of divorce is finalized, you are free to live your life as you had when you were single, except for any obligations the court may have imposed on you when it granted the divorce.

What are the Benefits of a Divorce?

Unlike a legal separation, a divorce rarely brings monetary benefits. However a divorce may have emotional benefits that far outweigh anything financial.

Divorce should not be a rash decision. If you are reading this, that generally means you and your spouse were unhappy in your marriage for some time. If you opt for a divorce the process itself may be time-consuming, but once it is over it is over. Of course, you both must abide by the terms of the divorce, but the amount of contact you have with your ex-spouse can be minimal to non-existent, depending upon what you want (and if you have children together). You do not have to worry about having him or her agree to sign papers years down the road when you want to get married again.

If you have children, you may find that you become a better parent after your divorce. It is likely there were no time constraints on the days or hours you could spend with your kids during your marriage. You may have taken family time for granted without even realizing it. Now, especially if you are the non-custodial parent, you will have a visitation schedule. Knowing you only have three days to spend together will cause you to value and appreciate that time much more.

The biggest benefit of all: you will be happy. A divorce hurts of course but in the long run you will probably look back on your marriage and see how unhappy you were. This will not happen instantaneously, but eventually you will begin to feel like yourself again. You may even feel like a new, better person after your divorce as you realize how much of yourself you sacrificed for the relationship.

What are the Down Sides of a Divorce?

As you may have assumed, most of the downfalls of a divorce are all of the benefits of a legal separation. You or your spouse will lose health insurance coverage, you will no longer be able to file joint income tax returns, and you may face being ineligible for your spouse’s social security benefits.

Aside from those already mentioned, a divorce has the potential to be time-consuming, expensive, and exhausting. You may see a side to your spouse that you never knew existed, and one that you wish you had not seen. Your spouse may try to convince you that you will walk away with nothing and that he or she will pay for nothing. However, the down side here is your spouse’s negative attitude towards you, as it is likely that anything he or she says is exaggerated or completely false. If you have carefully considered your decision to get divorced, do not allow your spouse to bully you out of it for their own selfish reasons.

The Choice of Divorce or Legal Separation is Yours

The choice between a divorce and a legal separation is a purely personal one. No one can tell you which is the right or wrong answer, not even your family law attorney. Robert E. Horberger, Esq. can help inform you about the differences between the two, but you should ultimately sit down with your spouse and have a calm, informed conversation about which option is best for the both of you.

Ready to Divorce or Legally Separate in Nassau County or Suffolk County on Long Island?

If, now that you have read about the differences between divorce and legal separation on Long Island, perhaps you’re ready to move forward with one or the other. The experienced and compassionate family law attorney, Long Island’s Robert E. Hornberger, Esq., PC and his team can help you draw up your legal separation agreement or start your divorce proceedings. There are a number of different methodologies of divorce, including divorce litigation, divorce mediation, collaborative divorce, no fault divorce, contested and uncontested divorce which may or may not be appropriate for your unique relationship and circumstances. Give us a call at 631-923-1910 for a complimentary consultation where we’ll discuss your unique situation and the options available to you.

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Janine Martello D'onofrio
Janine Martello D'onofrio
21:00 02 Oct 21
Rob and Christine are the very best out there!I can not say enough about them. They both have helped me so much in different matters throughout the last several years . They have gone over and beyond!I highly recommend this law firm !
Tara Tocci
Tara Tocci
20:59 17 Sep 21
I called to make an appointment for a consultation to discuss a mediated divorce, the office was fantastic with getting me a prompt appointment. When going in all my questions were asked and I left feeling comfortable in my decision to move forward in using the Hornberger/Verbitsky office. Despite a pandemic going on the office still worked diligently to get my papers filed and my divorce complete in a timely manner. Highly recommend!
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