Separating from your spouse, even in the most amicable of situations, can be emotionally and financially challenging. You may not know who has the right to certain items of property (including the former marital residence) and you may struggle to pay your bills as you transition from a two-income household to just one. The complexities are even more pronounced if you and your spouse have children together.
When two spouses separate, they have the option to enter into a Separation Agreement. Although they are still legally married, and the agreement itself does not end their marriage, the Separation Agreement can settle a number of otherwise difficult issues arising out of the relationship. Count on the Garden City, NY team at The Saul Law Firm, LLP to assist you.
Why Have a Legal Separation?
To legally separate, you and your spouse must not only actually part ways by having one spouse leave the marital residence. The two of you must also enter into a written Separation Agreement, and then live apart for one year and follow the terms of the Agreement. There are other avenues for getting a divorce, such as one spouse filing for a no-fault divorce (irretrievable breakdown of the marriage) after six months.
So why have a legal separation and Separation Agreement instead? These are a few reasons:
- Uncertainty about whether to divorce: The spouses may be experiencing marital problems but are not yet ready to call it quits and terminate the marriage. Legal separation allows them to live apart as a sort of trial period while working out child custody and other matters.
- Religious reasons: Some individuals have religious objections to divorce but find that they cannot continue in the marital relationship. A legal separation allows them to honor their faith while seeking relief from the marriage.
- Financial considerations: Perhaps the spouses would lose the financial benefits of marriage, such as joint tax filing and health insurance coverage, if they got a divorce. They can legally separate and still maintain those benefits.
The Differences Between Legal Separation and Divorce in Garden City
Legal separation allows spouses to remain married but live apart from each other under the terms of a written Separation Agreement. Unlike divorce, which ends the marriage, a legal separation agreement does not. Because the spouses are not actually divorced, neither is free to remarry.
These are a few of the other main differences between separation and divorce:
- Separation allows spouses to retain their benefits: Since you are still legally married even with a Separation Agreement, you can keep the various benefits that attach to marriage. Among them are health insurance coverage, Social Security, tax benefits, and military benefits. These would end upon divorce.
- Mutual property rights: If either spouse in a marriage dies, depending on how assets are titled, and depending if rights upon death are waived in the Agreement of Separation, the other spouse has certain rights to the deceased’s property. These rights are destroyed once the two divorce.
- Easier to reconcile: Although you cannot legally remarry while you are separated because you have not yet been divorced, you can still save your existing marriage. Legal separation allows the spouses to reconcile at any time and resume their relationship. On the other hand, a divorce cannot be undone unless parties choose to remarry.
- Shared debt responsibility: During legal separation, one spouse may still be responsible for debts that the other has incurred. Upon divorce, a spouse is solely liable for whatever debt is distributed to them through the divorce process.
What Is Included in Legal Separation Agreements?
Legal separation requires a written Separation Agreement, which is something that both spouses should want anyway to resolve various matters. Working with a Garden City family lawyer, you and your spouse can negotiate and settle the following:
- Child custody and visitation: Child custody consists of both legal custody (which parent has the right to make major decisions affecting the child) and physical custody (which concerns the physical care and supervision of the child). If a child lives with one parent more than 50% of the time, that parent is known as the custodial parent. The other parent will have visitation rights.
- Child support: With some limitations, the parents can include in their Separation Agreement how much one parent will pay the other for child support. Child support amounts in general are calculated according to a preset state formula. But the amount included in the Agreement can depart from this if certain conditions are met.
- Spousal support (alimony or maintenance): The agreement can also state how much spousal support, if any, that one spouse will pay the other. It should clearly state the amount of alimony, the frequency and method of payment, the duration, and any applicable terms and conditions.
- Property and debt division: The spouses can establish in their Agreement which of the two will take certain items of marital property and who will be responsible for marital debts. They can also agree which assets and liabilities will remain separate.
How to Get a Legal Separation in Garden City
In New York, spouses can file an action with the Court to ask for a Judgment of Separation. But the more common route is for the spouses to retain legal counsel and work out the terms of a Separation Agreement. It is strongly recommended that both spouses retain their own experienced attorney so that the written agreement will be valid, properly drafted, and enforceable.
Spouses often negotiate their agreements by way of an out-court-process known as mediation. A neutral third party, known as a mediator, will meet with the spouses and their respective legal counsel to negotiate and settle the written agreement. The mediator cannot make decisions for the spouses, but can suggest creative solutions and compromises.
Your lawyer will propose terms to use in the Agreement and review, explain, and if necessary counter terms that your spouse’s lawyer recommends. Ultimately, your attorney will work for the best possible Separation Agreement and explain your rights and obligations under it.
Once the Agreement is finalized, you and your spouse will sign and notarize it. The spouses can file the Agreement in court, which is important if you wish to use it as part of your divorce or otherwise ensure that the court will enforce the Agreement.
Contact Our Garden City, NY Legal Separation Attorney
Legal separation is the more preferable option for spouses who want to amicably part ways and come to agreement on the major issues arising out of their marriage. To learn more about legal separation and entering into a Separation Agreement, contact the Saul Law Firm, LLP today.