As a marriage begins to break down, one, or both, parties may begin to think about divorce. While most unsuccessful marriages do end in divorce, there exists another, lesser-known option—the legal separation. A divorce officially and legally dissolves a marriage; ending both the legal and financial partnerships between the parties that were established by the marriage. A legal separation typically involves the parties separating their finances, determining custody and visitation (if applicable) and allowing the parties to live separately and independently, while keeping some aspects, of a legal marriage viable. Those that decide to go through a legal separation, rather than a divorce, do so either for personal, religious or financial reasons.
Opting for a legal separation rather than commencing a divorce proceeding, may very well be a personal decision reached by both parties. While legal separation may allow parties to live freely and independently and terminate a marital household, a divorce is absolute. Parties may be wary of entering into a divorce, under the belief that a divorce is too final, and may not wish to end any hope of reconciliation. Couples that are considering ending the marriage, but wish to keep open the option of reconciliation, may lean toward a legal separation. Conversely, while a legal separation allows the parties to reconcile one day, it will not permit either party to remarry. Because a divorce permanently ends a marriage, and because all states forbid the practice of bigamy, the act of marrying an individual whilst already legally married to another individual, a couple must complete the divorce proceeding before either one is able to be remarried. Additionally, couples that are religious or adhere to certain moral or cultural mores, which may not permit the practice of divorce, may wish to consider legal separation as a tolerable break from an untenable marriage while still remaining legally married and their complaint with their religious doctrine. Thus, couples may live in separate houses, have their own accounts and separate financial life, and enjoy their own independence while still being legally married to their spouse.
Lastly, there exist some financial benefits to a legal separation, as opposed to a divorce. While a divorce permanently ends the financial partnership that exists between the parties due to a marriage, a legal separation allows the two parties to enjoy certain financial perks of marriage while living independently of each other. Most separation agreements in New York will include language to equitably distribute the marital assets amongst the parties at the time of the separation, as well as ensure that future assets obtained by either party are not considered joint marital property. However, legally separated couples can continue filing taxes jointly as a married couple. Depending on a couple’s financial situation, it may benefit one or both parties to file jointly, rather than each file separately. Divorce severs the marriage, rendering a joint filing impossible, while a legal separation would allow the parties to continue the benefit of filing jointly. Additionally, every judgment of divorce in New York will include language informing both parties that upon the termination of the marriage, each party will be removed from the other party’s health insurance. This is mandatory language advising that divorce will terminate each party’s eligibility to be on their soon to be ex’s health insurance. Inversely, couples that utilize a legal separation are able to remain on each other’s health insurance, so long as they are not divorced.
If any of these considerations are relevant to your situation you will want to consider a legal separation.
Note: A legal separation cannot act to allow the distribution of pensions or other retirement accounts requiring a domestic relations order. While distribution of the asset may be set forth in the separation agreement, it cannot be distributed absent a judgment of divorce.
This is not intended to be legal advice; you should contact an attorney to discuss your specific situation.
Rebecca Johnson is an attorney at J&G Law concentrating in matrimonial and family law. She can be reached by phone at (845) 778-212 or by email.