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What’s The Difference Between Legal Separation & Divorce in New York?


When a couple decides to part ways, divorce isn’t the only option. There are many reasons two people may choose to live separately but remain married — either temporarily or indefinitely.

And while legal separation can be an alternative to divorce, it can also be a step toward divorce. That’s why it is important to understand the key differences between legal separation and divorce to help make the right choice for you and your spouse.


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What is a Divorce?

When two people file for divorce, the intention is to end the marriage completely. During a divorcee case, a settlement agreement will be reached, involving issues such as division of debts and assets. If a child is involved, both parties must come to an agreement as to whom has custody rights, if visitation rights will be granted, and for the amount of child support that will be required once the marriage has officially ended.

What is a Separation?

While a divorce means that a marriage is officially over, a separation is different in that both parties remain married but instead live separate lives. Many of them either plan to fix the marriage or file for a divorce down the road. Depending on the couple’s specific circumstances, there are two types of separation processes. One type will go through the courts, similar to divorce. This path allows for the division of retirement benefits according to a QDRO, even if the couple is not divorced. In the second, all issues in regard to the division of assets, child custody and support, allocation of responsibilities, etc. will be defined in a separation agreement and recorded by a county clerk without the court’s involvement.

Separation as an Alternative to Divorce

Often, couples do not want to proceed with a divorce because they believe separating temporarily will allow them to reflect on their marriage and possibly reconcile. Other reasons for a separation as an alternative to divorce may involve religious beliefs, sentimentality or personal preference, where the separation may last as long as they want. The most frequent reason is staying on the other spouse’s health insurance.

Separation as a Step Toward Divorce

In regard to property and assets, separation accomplishes many of the same things as divorce, and as a result, is often a step toward divorce for some couples. In many cases, couples will enter a legal separation to postpone or minimize any financial burdens with additional time to prepare for the financial changes that accompany a divorce. Since the only grounds for divorce in New York is “irretrievable differences in the marriage” which could mean anything, at any time after a legal separation, the couple can move forward to file for divorce.

4 Important Things to Know about Separation in New York:

When deciding between a divorce and a legal separation, there are some important aspects to consider:

  1. Healthcare Benefits: One of the biggest reasons couples opt for a legal separation is that it typically allows both spouses to remain on the same health insurance policies, unlike in a divorce, where both parties will need their own health insurance plan or a cobra plan. Both parties also retain all social security benefits, such as retirement, unemployment insurance, pension insurance, etc., many of which will terminate during a divorce or will need to be negotiated into separate property during a divorce.
  2. Property Rights: During a separation, the rights to the property they own together are preserved. Reversely, a divorce forfeits these rights, requiring the couple to divide the shared property within their settlement agreement.
  3. Debts and Liabilities: Since a legal separation means that a marriage status is active, it also means that a person can still be held responsible for their spouse’s debt, in addition to other similar liabilities. If a divorce is filed, then all debts are handled during the process of dissolution of the marriage to allow each party to live separate lives.
  4. Important Decisions for the Other Party: Spouses remain next of kin for each other during a legal separation, which means  they still carry the right to make medical or financial decisions for the other person Unlike a divorce, a separated spouse still carries the responsibility  of making decisions that they feel is best for them and their family.

Choosing between a legal separation and divorce depends on the unique situation of each couple, so it’s important to know the differences and how they will affect your family. To learn more, contact our Divorce Mediator Attorney in Suffolk County, Fredrick Klarer, to discuss your options today.

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