Clients often ask me, “What is the benefit of getting a legal separation instead of a divorce”?
On October 12, 2010, it became possible to obtain a “no-fault” divorce in New York. Either the husband or the wife has to allege under oath that the marriage has irretrievably broken down for a least six months.
Before that date, to obtain a divorce in New York you needed to demonstrate grounds for the divorce that found fault with one or the other of you, with one exception. An additional ground for divorce that did not assign fault was separation — living separate and apart for more than one year pursuant to either a validly signed separation agreement or a judgment of separation by a court. And so, prior to October 10, 2010, most people who signed a separation agreement did it as a way of obtaining a divorce without getting into legally assigning blame to one or the other.
Another reason for a legal separation rather than a divorce is that it usually enabled one spouse to stay on the other’s health insurance. Now that we have no-fault divorce in New York that is the most likely reason for a legal separation rather than a divorce. However, since the arrival of Obamacare, many employers will not continue to cover a separated spouse of any employee, so if that is what you thinking of doing, you need to check with your employer first to make sure that they do offer that benefit.
Occasionally there couples who obtain a legal separation rather than a divorce because one or both of them are hoping for a reconciliation, but need to make sure certain aspects of child custody and care and certain financial support issues are spelled out in writing beforehand while they are attempting to work out their differences.
Sometimes couples cannot come to terms on some aspect of a divorce but are content with a legal separation. I have had clients call me years after signing a separation agreement to proceed with the divorce.
A validly executed (signed) separation agreement is valid as a legally binding contract. However, it is probably better to also obtain a Judgment of Separation from the Court: it makes issues about support enforcement and certain other issues much easier to resolve if a dispute arises.
If you have any questions about this give me a call at 631-757-1553; I would be happy to discuss it with you.