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Choosing legal separation over divorce

On Behalf of | Jun 15, 2022 | Family Law |

New Yorkers have faced unprecedented challenges over the past few years, between social isolation, severe income or health challenges and a tumultuous and unpredictable economy. It is no wonder divorce rates are skyrocketing and families are feeling emotional and economic strain.

Some couples in Jamaica and surrounding communities, however, are choosing distance rather than divorce as a means of finding perspective and balance between personal and professional stressors. It is important, however, to understand the pros and cons of separation in New York as well as its legal implications.

Legal separation in New York

New York laws allow couples to separate rather than divorce by entering a separation agreement. A separation does not end the marriage, but it does place certain practical restrictions on the arrangement.

In New York, a legal separation requires a written agreement that the two parties with their attorneys voluntarily write up. The agreement can contain terms such as:

  • Who will pay for certain bills
  • Division of property such as vehicles and the family home
  • Terms for spousal or child support
  • Custody and visitation schedules
  • Division of pension and retirement benefits

Family court does not draft the agreement but will enforce it if one spouse violates the terms. The couple must maintain two residences during the separation. If the couple plans to use the separation in a future divorce, the separation must have lasted for at least a year.

Separation allows a couple to gain some distance from each other with either undefined goals, or with the intention of either working problems out or eventually spitting up. Couples often will agree to separate if they cannot afford to divorce or if there are practical considerations such as healthcare maintenance.

Pros and cons of separation

It is important to realize that separation does not end the marriage, as all financial and legal responsibilities of marriage remain. It won’t solve problems if the spouses do not do the work, and the effort to communicate will take more effort. For situations where the couple cannot get along or where there is evidence of abuse, separation is not advisable.

On the plus side, a separation does not solve problems but does give two individuals a chance to decide if they can or want to be together in the future. Couples often use this pause for marital counseling. For some, religious formation prevents them from divorcing. The practical considerations are also attractive, as this arrangement is far cheaper than divorce, but can be the basis for divorce later if they are headed that way.