Legal separation is sometimes the first step in a divorce. While the parties may reunite and work to repair the marriage, many do not and choose to move on and divorce. It is not an easy decision and there are a lot of things that go into creating a legal separation.
Having an attorney walk you through each step of the process is invaluable and can make the experience somewhat easier. If you are considering a legal separation, here is what you need to know.
What Does Legally Separated Work in New York?
In New York, a legal separation is an agreement between both spouses to separate. It means that a married couple has decided to stop living together as spouses, but they have not chosen to end the marriage. The agreement covers various issues like living arrangements.
It is a legally binding contract that once notarized is enforceable in court.
Sometimes a couple will get a separation when they are not sure if they want to get a divorce or if they can’t afford a divorce. They may also legally separate to live apart but retain certain benefits like financial, taxes, or continued health insurance.
A Separation Agreement makes the separate and apart living arrangements of the spouses official and legally binding. Simply living apart is not a legal separation.
How Do You Get Legally Separated in NY?
A legal separation is not granted by the court but is usually drawn up by attorneys and signed in the presence of a notary. The two parties can go to the same notary or different ones. It does not matter; they just have to appear in person before a notary to sign the agreement. If one spouse is missing or cannot be contacted, the other spouse cannot create a separation agreement.
By entering into the Separation Agreement, both spouses agree that they do live or will live separately and apart – but the separation is only official once both parties sign the agreement and it is notarized. It does not recognize any time apart prior to signing the agreement. Once it is notarized, it is a legally binding contract.
The separation also addresses issues within the marriage like with whom the children will live, each party’s responsibility for things like bills, how debt is handled, what happens to the marital home, taxes, pension, investments, and how the marital property will be divided, as well as other issues that the couple may want to include.
One year after the date that the contract was notarized, either spouse can file for divorce based on their separation agreement. This is called a conversion which does not require any grounds for the divorce to be granted. The Agreement is all that is needed.
The Separation Agreement can either be filed with the county at the same time the divorce is filed or earlier.
What are the Advantages of a Legal Separation?
A couple who is legally separated is still legally married. However, the couple may live apart and each spouse may maintain their assets separately. Depending on the circumstances, some advantages of legal separation include:
- The spouses’ property relations are dissolved
- One spouse cannot automatically inherit from the other in the event of death
- Gives spouses time to consider whether or not they want to dissolve the marriage
- Assets are separated
- In a problematic marriage, the contract can require the parties to maintain certain duties like paying bills or paying off debt
- If the couple decides to reunite, they do not have to get married again, they simply void the separation agreement
What are the Disadvantages of a Legal Separation?
Just as with divorce, there are certain disadvantages to getting a legal separation. One of the primary ones is financial. In a divorce, the parties are required to divide their current assets. In a legal separation, each spouse is only entitled to their own assets, not their spouse’s.
Time is another major factor. Once the separation agreement is notarized, the couple cannot file for divorce for a year.
If both spouses do not sign the agreement, it is not valid. It is also not valid if both spouses do not agree to all the terms, so a couple who disagrees often may have difficulty creating a separation agreement.
If a person is legally separated, they can usually date but they cannot marry someone else because they are still technically legally married.
In a marriage where there has been domestic violence or abuse, legal separation is not recommended.
Can You Date While Separated in New York?
A separation agreement means that spouses can legally live apart from each other before their divorce is finalized. Technically, this means that one or both spouses are free to date other people.
Without legal separation, even if the spouses are living apart, the couple is still legally married. This means if they have intimate relations with another person they are guilty of adultery. Under New York law, adultery is a legal ground for divorce.
If there are children from the marriage, dating while legally separated can impact custody. The ex can argue that dating so soon after leaving the marriage sets a bad example and creates instability for the children.
If a spouse uses the marital assets of their new partner it could incur penalties from the court and they may be ordered to repay their ex for the assets they spent.
There are too many things that can go wrong that could complicate the divorce. It is best to wait.
What are Some Things You Should Not Do When Separated?
While being legally separated may feel like living a single life, technically the parties are still married. With that in mind, some things should be avoided once a couple has entered into a separation agreement:
- Announcing the divorce is OK, but beyond that, it is best kept to a tight circle of trusted family and friends. Don’t talk about it to just anyone. The gossip mill doesn’t need any more fodder. Posting about it on social media, especially to complain or call out an ex, is a very bad idea. It can complicate the divorce, cause the ex to become uncooperative, and even affect custody and visitation of children from the marriage.
- Divide the bills and each spouse should pay their own unless there is a very good reason for one spouse to carry the load for both. The spouse who supports the other financially is creating an impression that they are capable of supporting the other spouse. This can lay the groundwork for spousal support after the divorce.
- Make sure the bills reflect the appropriate name. When the spouses divide the bills, they need to make sure that the names are changed to reflect the responsible party.
Your attorney can help you make wise decisions during your legal separation. Don’t be afraid to ask hard questions and make sure you listen to their advice. They have your best interest at heart.
Divorce and separation are never easy. And if you are legally separated, deciding whether or not to get a divorce can be emotionally taxing. It is an emotional time and you need a family law attorney who can help you get through it while protecting your rights and making sure you are treated fairly.
At the Litvak Law Firm, we can help you with your legal separation with compassion, care, and professionalism. Our team is knowledgeable and experienced in all aspects of family law. We will go to work for you. Call today at 718-989-2908 and get the representation you need.