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Understanding legal separation

Authored By: LawHelpNY

Disclaimer: This content is offered only as a public service and does not constitute legal advice. You should contact an attorney who is knowledgeable in this area to obtain advice with respect to any particular issue or problem.

Contents

 

What is legal separation? 

Legal separation is when you stop living with your spouse but follow certain living arrangements per a voluntary, written agreement. If a spouse violates the agreement, family court can enforce it. 

Unlike a divorce, legal separation does not end your marriage.

Couples decide to legally separate instead of divorce for many reasons. Some of the most common reasons are:

  • They are unsure if they want to get divorced
  • They cannot afford to get divorced
  • Financial benefit, such as continued health insurance

It is important to note that legal separation is not just moving out of the home you share with your spouse. If you want to legally separate, you need a separation agreement.

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How long does legal separation last?

You can be legally separated for however long you and your spouse think is best. However, if you plan to use your separation agreement as the basis for a divorce later, you and your spouse must have been living apart, under your separation agreement, for at least one year.

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Does New York have residency requirements for legal separation?

Yes and no. There is no residency requirement if, at the time of filing, both you and your spouse are residents of New York State and the grounds (reasons) for the separation arose in New York. 

Otherwise, you must meet one of these two residency requirements:

  1. At least 1 of you has been living in New York state continuously for at least 2 years before you file for separation.
  2. At least 1 of you has been living in New York state continuously for at least 1 year before filing and…(one of the following):
  • ...you got married in New York state
  • ...you lived in New York state when you were married
  • ...the reason you want to separate happened in New York state
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What is a separation agreement?

A separation agreement is a written contract between you and your spouse that outlines the rights and responsibilities of each spouse while living apart. 

Generally, rights and responsibilities in a separation agreement include division of property and debt, how much child support you will pay or receive, child custody (if you have children) and visitation.

A couple things to note:

  • Having a separation agreement is what makes you legally separated. You are not legally separated unless you have it.
  • You and your spouse must voluntarily agree to all the terms of your separation agreement. The court will not force a separation agreement upon you.
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Do I ask the court for a separation agreement?

No. A court will not draft—or give you—a separation agreement. You and your spouse, or your lawyers, are responsible for drafting the agreement.  

You and your spouse must both sign the agreement voluntarily. 

Once your agreement has been signed and notarized, you then file it with the County Clerk.  

You can write your own separation agreement, but it is tricky. Legal separation agreements are long and complex. 

We strongly recommend you ask an attorney who has expertise in this area to help you. If possible, both you and your spouse should each get an attorney.

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What should my separation agreement say?

In general, a separation agreement covers:

  • Basic information such as the date you were married, the date you separated (or will separate)
  • Who the children will live with (if you have children)
  • Who will pay which bills
  • How property, like your home and cars, will be divided up and cared for

It is important to think carefully about the terms of your separation agreement. If you decide later to get divorced, the terms of your separation agreement can become the terms of your divorce. 

To help you prepare to speak with a lawyer about a separation agreement, the following is a list of issues a lawyer will likely to ask you about. Consider each issue carefully:

Where you will live

Legally separated spouses must live separately at all times.

Spousal support

The agreement must specify the amount of spousal support (if any) you or your spouse will pay to the other and for how long.

Custody

You and your spouse will need to decide if one of you will have sole custody of your dependent children, or if you will share custody (known as joint custody).

Visitation schedules

Whether you have sole or joint custody, your separation agreement should include:

  • A regular visitation schedule (times during the week that each parent is allowed visits with the child)
  • A holiday visitation schedule
  • A vacation visitation schedule

Child support

Typically, the parent who has the child for the least amount of time pays child support to the other parent. You will need to decide how much, and how often, the paying parent pays.

Any additional costs for children

Additional costs can include costs for extracurricular activities (like piano lessons or sports league fees), additional health insurance, etc. Total up these costs and decide what percent of the total cost each parent will pay.

Your home

You will need to decide what will happen to your home. For example, you may want to agree that you or your spouse will not sell the home without the other’s permission.

Other property

If you want to make sure you are entitled to a specific piece of property, like your motorcycle or car, state it in your separation agreement.

Pensions and retirement

How your pension and other retirement accounts, like a 401(k), will be divided up.

Who will pay which bills

You will need to decide who will be responsible for which bills, like your mortgage, any credit cards, car payments, insurance payments, personal loans and any other debts.

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What do I do after the separation agreement is written?

  1. Get it signed and notarized. You and your spouse can sign it at different times and in front of different notaries.  
  2. File your signed and notarized separation agreement with the County Clerk. 
  3. Once your separation agreement has been filed, the process is complete.
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Is legal separation right for me?

There are pros and cons to legal separation, and it may not be right for every couple. Here are some of the most important things to consider:

The pros

  • Legal separation provides space and time to figure out if divorce is really what you want.
  • It can be a good time for marriage counseling.
  • You can still get your spouse’s health insurance.
  • Years spent legally separated count as years married, so you will be able to receive your spouse’s social security retirement benefits. (You must have been married for at least 10 years to receive your spouse’s social security benefits.)
  • Legal separation may not violate your religious beliefs.
  • A separation agreement can be helpful if you get divorced because the court may allow you to use your agreement as a basis for divorce.

The cons

  • Legal separation does not end your marriage. You would still have financial, legal and logistical ties to your spouse.
  • A separation agreement is meaningless unless both spouses sign it.
  • Spouses who do not get along or do not communicate well may have a hard time creating a separation agreement.
  • You cannot marry someone else when you are legally separated.
  • If abuse has occurred in your marriage, legal separation is not a good option.
  • You must wait a year to use a separation agreement as a basis for divorce.

The above are just points for you to consider. For legal advice, contact a family attorney in your area who is knowledgeable about legal separation.

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Legal separation is not right for me. What else can I do?

Legal separation is not right for every couple. In some cases, the cons outweigh the pros. If this is the case for you, here are three other options you may want to consider:

  1. Live separately but do not put the terms of your separation in writing.
  2. Live separately and file petitions in Family Court for custody, visitation and child support.
  3. File for divorce. There are two types of divorce. An uncontested divorce is for married couples that agree on all the terms of the divorce. A contested divorce is when the married couple does not agree on all the terms. It is best to hire a lawyer for a contested divorce. 
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I'm legally separated, but now I want a divorce. What do I do now? 

If you want the terms of your divorce to be the same as the terms in your separation agreement, file for a conversion divorce.

What is a conversion divorce?

A conversion divorce is a divorce based on an existing separation agreement.  

How is a conversion divorce different from a regular divorce?

In a conversion divorce, you ask the judge to include all the terms of the separation agreement in your divorce. The judge will review all of the terms of your agreement and decide whether to include all the terms of the agreement in your divorce.

Also remember: You and your spouse must have lived apart for at least one year, and followed the terms of your separation agreement, before filing a conversion divorce.

If you have not already filed your separation agreement with the county clerk, you must file the separation agreement at the same time you file your divorce papers.

Do I need a lawyer for a conversion divorce?

It is always best to have a lawyer when getting a divorce. If you hired a lawyer to write your separation agreement, that lawyer can help you file a conversion divorce.

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Last Review and Update: Nov 01, 2017
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