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Legal separation is often the first step toward a divorce because it allows a married couple to live separate lives while legally remaining married. There are a number of reasons a married couple might choose to do this (see Top Benefits of Legal Separation below). A legal separation addresses all the same issues as a divorce, including things like property division, assets and debts, child custody and support, and visitation.
Should you eventually divorce, your separation agreement can be converted into a divorce, usually with few to no changes. Here’s what to know and how our experienced Long Island, NY divorce lawyers can help you.
In New York, when parties enter into a separation agreement, they are required to physically separate. Most couples choose to live in separate households as though they are no longer married.
Under the terms of this legally binding agreement, you and your spouse will decide issues of child custody and support, and settle the responsibility of bills and other monthly expenses. Once both you and your spouse sign the agreement, have it notarized, and file it with the county clerk in your area, your legal separation is official.
Legal separation is an alternative to an uncontested or no-fault divorce. The process is much less formal than divorce and can usually be completed with little to no involvement by New York state courts. Be aware that this is a legally binding contract and you may be penalized if you fail to meet the court-ordered obligations of your separation agreement, even though you’re technically not divorced. You also can’t remarry while the separation is in effect – you’ll need to go through the divorce process if you want to get married to someone else.
There are many benefits of opting for a legal separation instead of a divorce, like:
- A separation agreement lets you go back. If you choose to get divorced, it’s permanent once it’s finalized. If you and your spouse later have a change of heart, you will have to remarry. If you decide not to proceed with a divorce after your legal separation you can if you wish, get back together without the requirement of getting married again.
- Being separated maintains health care coverage for both spouses. After a divorce is finalized, ex-spouses are usually no longer covered under most employers’ health insurance plans. But if you’re legally separated, you’re technically not divorced so your eligibility for coverage may remain.
- Remaining married keeps your tax benefits intact. Filing your taxes as married (either separately or jointly) usually gives you more tax breaks than if you file as single.
- You can also keep your social security benefits. The Social Security Administration allows a married person to collect spousal benefits once the earning spouse begins to collect their own benefits. If you are already divorced, your marriage has to have lasted at least 10 years for you to be eligible to receive benefits.
Like with any family legal matter, there are some potential risks to consider when it comes to deciding between getting legally separated and getting divorced.
Yyou could be held responsible to pay any uncovered medical expenses that your spouse incurs during the time you were separated.
If your spouse takes out a credit card or accumulates debt, you’re still technically married, so you’re still most likely going to be technically on the hook for half of that debt.
In a worst case scenario, you could become responsible for supporting your spouse if they become disabled while still legally married.
It’s always tough on children when their parents separate, even if it ends up being for the best for everyone involved – even your children. It’s important to take steps to protect your children during your separation.
First, establish clear rules and consistent routines. Your kids need to know what to expect when everything feels unsteady. Try to give them stability by agreeing with your spouse on the rules for each home.
You should also maintain communication with your spouse, even if you’re not getting along. Your kids need you to be civil and focused primarily on their needs and best interests. Try not to speak badly about your spouse in front of your children, even when you’re angry. This adds even more stress for your family.
Try to make sure you and your children have access to professional support. As your family dynamic changes, your family may need extra guidance or advice to navigate life. Consider working with a counselor or therapist who has specific experience working with children whose parents are separating. These professionals are equipped to provide you and your family with tools and resources tailored for your individual situation.
Finally, make as much time as you can for your kids. Put in the effort to spend quality time with them doing things they are interested in or like doing. Your children need reassurance that you’re still there for them even though their family might look a little different now.
Many couples go through the process of wondering if they should get separated or just go straight for a divorce. The answer to this question naturally depends upon each person’s individual circumstances. Here are some things to think about:
- Whether or not you or your spouse need continued access to the other’s health insurance
- If you have any desire to possibly rekindle your relationship with your spouse
- If you still want to file taxes as a married person or if incurring the extra costs is worth being divorced
- Whether or not you trust your spouse not to accumulate debt for which you’ll eventually become partially responsible
- If you or your spouse is getting ready to draw Social Security
How do I protect myself financially during a legal separation?
Just like with a divorce, there are multiple financial considerations to make in a separation agreement. Protecting yourself from fraud, theft, and hidden assets should be a precautionary measure every spouse takes when going through the process of separating or divorcing. Start by opening your own bank account, taking your name off of your spouse’s debt, and regularly checking your credit score.
Can we both stay in the family home in separate bedrooms?
If you and your spouse both remain in the family home, you will not be considered legally separated under New York state law. You will each need to live on your own for a period of at least one year before filing for a divorce. You can both move to new places and sell your old house and split the money, or one of you can move and the other can keep the family home. But regardless of who lives where, it must be “separate and apart” to qualify.
What happens if you legally separate but never get a divorce?
If you and your spouse separate but never go on to get a formal divorce, the terms of your separation agreement essentially remain in effect forever. You may be able to renegotiate the terms of the separation if you both agree to it later on, similar to the way a divorce or child custody agreement would be modified.
Before making a final decision about getting a divorce or legal separation on Long Island, NY it’s crucial to discuss both options with a qualified and experienced New York family law attorney. Make sure to look at the situation not only from the financial aspect but also from an emotional standpoint to see where you’re really at and what your goals for the future are.
The compassionate and experienced divorce attorneys and family law attorneys at Hornberger Verbitsky, P.C. will be happy to help answer your questions about legal separation or any other divorce issue. Just call 631-923-1910 for a complimentary consultation or fill out the short form on this page and we’ll get right back to you.
Rob first handled my legal separation back in April 2014 and helped me get out of my house with an agreement that worked for myself and future ex. Finally, in early 2018 we started the process of divorce and he has been terrific to work with. He lets you know every step of the way what is going to happen and is very honest with his opinions on certain subjects. Divorce is not easy on the “Man” side of the equation and Rob was instrumental in making sure I landed on my feet. I’m glad he was on my side and I highly recommend him for anyone making sure they get a fair deal.
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