Does New York State Allow Legal Separation?

Not every state in the country allows couples to legally separate, but New York State is among those that do. Couples can petition the court for a Judgment of Separation or create a Separation Agreement, which is a written contract that stipulates the terms of their separation. In these cases, the couple is not divorced—they’re still married—but they live separate lives and may negotiate certain provisions such as child support or alimony in the separation agreement. In this article, the Westchester County, NY, divorce attorneys at the Law Office of Robert S. Sunshine will discuss legal separation, how it works, and how to get one in New York State.

What is the difference between a judgment of separation and a separation agreement? 

Couples can freely enter into a separation agreement of their own accord. This affords them the opportunity to privately create a legally binding contract that the spouses voluntarily enter into, which outlines the terms of their separation. The separation agreement will address issues such as child custody and visitation, alimony, and the division of property and debt. You and your spouse must voluntarily agree to all the terms.

A judgment of separation, on the other hand, is a less common method of legally separating that does require the court’s involvement. Such an agreement is sought when the couple cannot agree on the terms of their separation. In this case, one spouse would file an action for separation with the court, alleging grounds for separation such as:

• Cruel and inhuman treatment,
• Abandonment for one or more years,
• Imprisonment for three or more years,
• Or, Adultery.

The case would proceed to family court, with the judge rendering final decisions regarding the separation agreement, and a formal Judgment of Separation is issued by the judge at the end of the proceedings. This is very similar to how a divorce would proceed. It resolves similar issues, but the couple would remain legally married.

Ultimately, a separation agreement is a private contract that you and your spouse create without involving the court. A judgment of separation is a court-ordered decree that establishes that you and your spouse are legally separated (but not divorced), the terms of that separation, and is entered into when a voluntary agreement cannot be reached.

What are the benefits of legal separation over divorce? 

Some couples may need time apart from one another without necessarily being ready to divorce. In these cases, legal separation provides a viable alternative to divorce that gives the couple the space they need without untying the knot permanently. Nonetheless, a separation agreement can be used as the basis for a future divorce, which ultimately saves money.

In addition, legal separation offers some financial incentives. It allows a spouse to continue receiving health insurance, social security, and tax advantages that a divorce might end.

Others choose legal separation due to strongly-held religious beliefs concerning divorce.

It’s important to note, however, that a legally separated spouse cannot remarry until they are fully divorced.

Talk to a Westchester County, NY, Divorce Lawyer Today 

The Law Office of Robert S. Sunshine represents the interests of couples who are looking to legally separate in Westchester County. Call our Westchester County family lawyers today to schedule an appointment, and we can begin discussing your next steps right away.