Legal Separation and Separation Agreements

When a marriage “ends,” it does not always mean that the marriage ends in divorce. There are sometimes situations where spouses may decide that it’s better to separate but stay married. In this sort of scenario, particularly if the separation may last longer than just a trial separation, it’s often not enough to simply live separately. If the parties are still married within the eyes of the law, their legal rights and obligations to one another remain in place as if they were still living together. While in some circumstances retaining these rights can be to both parties’ advantage, separating without establishing terms for the separation can lead to potentially serious disputes and elevated financial risk. Many couples may want to ensure greater security as they relocate into separate households, with clearly defined terms outlining their rights and responsibilities, to avoid conflict down the road. To this end, they can get a legal separation in New York, which can provide them a sense of stability and reassurance as they part ways, whether this separation is a temporary or more permanent arrangement.

Why Get a Legal Separation?

One of the most obvious advantages of legal separation is that it offers spouses struggling in their marriages the opportunity to see how living apart impacts their relationship and any problems that they’re experiencing. It gives them time away from each other without having to commit to a legal dissolution of their marriage. This may be ideal for spouses who are not entirely sure whether or not their marriage can be fixed. But there are other reasons why legal separation might be a consideration. For example:

• Financial Considerations – Couples may find that they stand to lose financially if they divorce, such as by losing their ability to file jointly on their taxes.
• Religious Considerations – Some couples may find that they can’t live together anymore, but their religion may not condone divorce.
• Just Not Ready – Some couples may recognize that the marriage is over but still aren’t ready to go through the process of divorce.

What Is the Difference Between Legal Separation and Divorce?

Legal separation is a legal arrangement that allows couples to stay technically married while no longer living together, by way of a separation agreement or court order. A separation agreement in New York must be a written agreement voluntarily entered into by both parties, outlining the different rights and obligation of each spouse.

While there may be some similarities between separation and divorce, there are also some distinct differences, the most evident being that divorce terminates a marriage, whereas legal separation does not.

When a couple debates whether they should get a separation or divorce in New York, they should consider some of the key differences between the two options, both which offer advantages and disadvantages:

• Benefits Retention – With legal separation, spouses can retain benefits such as health care, social security, military benefits, or tax benefits, which would otherwise terminate if they got divorced.
• Retention of Property Rights – Legal separation safeguards the right to one another’s property if either spouse dies, whereas divorce terminates that right.
• Reconciliation Is Easier – It’s easier to reconcile (and legally reunite) with a spouse if the couple is only legally separated. A legal separation can be reversed, but a divorce cannot.
• Remarriage Is Not Possible – With a legal separation, spouses are still legally married, which means they are not eligible to marry another person.
• Legal Next of Kin – As legally separated couples are still technically married, they retain the right to make legal decisions for one another, such as medical or financial decisions.
• Debt Responsibility – With legal separation, a spouse may still be liable for the other’s debts; in a divorce, marital debts are equitably distributed and a spouse’s separate debts typically remain their sole responsibility.

How Can I Get a Legal Separation in New York?

To obtain a legal separation in New York, couples must go one of two routes. Most commonly, spouses will choose to enter into a separation agreement. But if they cannot agree on the terms of a separation agreement, they can seek a Judgment of Separation from the Supreme Court of New York.

What Can a Separation Agreement Cover?

If spouses choose to create a separation agreement, they must ensure that their agreement meets several requirements to be legally binding. Namely, their agreement must take into account the same sort of issues that would be addressed if they were seeking a divorce.

Issues to cover in a separation agreement include:

• Child Custody and Visitation
• Child support
• Spousal Support
• Separating Assets and Debts
• Residences of Both Spouses
• Additional Expenses for Children

To ensure that a separation agreement meets New York’s requirements to be legally binding and enforceable, it is advisable to involve an attorney experienced with family law, and both spouses should have independent counsel to safeguard both their best interests. Additionally, it’s possible that if only one of the spouses has an attorney, the other spouse could challenge the validity of the agreement, citing their lack of representation during the drafting of the agreement as just reason to invalidate its terms.

How Much Does It Cost to Get Legally Separated in New York? In New York, a separation agreement does not need to be filed with the county clerk, so long as it has been signed and notarized. It is, however, advisable to do so, so as to best protect the agreement’s validity in the future. Filing the separation agreement will ensure that no changes can be made to the agreement without authorization from both parties, and it’s a simple way to protect the original agreement from loss or destruction. Finally, filing the executed agreement permits it to be used as part of a divorce action.

A separation agreement must be filed in a spouse’s county of residence, in the county clerk’s office. It must be fully executed, meaning both parties have agreed to all the terms and signed and notarized it. The cost of filing a separation agreement may vary depending on the county of residence, between $5 and $210. Spouses who live in New York City will need to purchase an index number from the county clerk for $210. (Outside of NYC, certain counties may only require a filing fee of $5.) Then the spouses will need to obtain certified copies of the separation agreement. Each certified copy costs $8.

Your Key to a Successful Resolution

If you and your spouse are contemplating a legal separation, call our office at Rudyuk Law Firm, P.C., today and schedule a consultation. Ksenia Rudyuk, principal attorney at Rudyuk Law Firm, is experienced with all aspects of family law and can review your specific circumstances to help you take the next steps.