The Difference Between Legal Separation and Divorce in NY

When spouses in New York decide to go on their separate ways, they have two options: divorce and legal separation.

Both of these resolutions allow the spouses to lead separate lives, but they come with different terms. For some couples, the finality of divorce enables them to move on fully with their lives. For others, the time and space granted by a legal separation allow them to think and prepare for the next step. The choice between a legal separation and a divorce depends solely on the spouses — only they can fully understand what’s best for their marriage.

Legal Separation vs. Divorce

Though they may sound similar, there is a world of difference between divorce and legal separation. In New York, a divorce is a dissolution of marriage. In essence, a divorce terminates the marital union. Once divorced, the two parties no longer serve marital obligations or enjoy marital benefits, like health insurance or joint tax returns.

On the other hand, a legal separation does not dissolve or terminate a marriage — the couple is separated, but remain married to one another. It means they will live in a separate household and are no longer responsible for one another. However, since they are still married, they are entitled to marital benefits, like social security and inheritance rights.

The Advantages of Legal Separation

It may seem counterintuitive to remain married to someone whom you think is no longer a suitable life partner, but for many couples, legal separation is a better option than driving straight into divorce.

Rethinking Strategies

For instance, through legal separation, the parties use the time apart to rethink their next steps; after some time, they can choose to work on their relationship. Alternatively, they can use the time apart to resolve issues related to custody, visitation, and property division, so that when they file for divorce, the proceedings won’t be needlessly complicated. In fact, a year-long legal separation alone gives you grounds for divorce in New York.

Less Financial Burden

A legal separation also puts the spouses in a better financial position. The legal separation agreement, which is a written contract between the spouses, will outline the rights and responsibilities of each spouse. For instance, the agreement can limit a spouse’s liability for the debts incurred by the other during the separation. The agreement also details who will pay which bills and how the property will be divided.

Religious Reasons

Some couples also choose legal separation for religious reasons. Some religions frown upon divorce (or in some cases, do not recognize it). Since legal separation doesn’t dissolve a marriage, the spouses avoid the religious consequences of a divorce.

It is important to note that the separation agreement is drafted and signed voluntarily by both parties. A court does not draft or grant a separation agreement. Once the agreement has been signed and notarized, it is filed with the County Court Clerk.

Choosing Divorce

Despite the advantages of legal separation, it may not be the best choice for some couples. For instance, if there is domestic abuse, then termination of the marriage may be a sound course of action. A legal separation also won’t allow any of the spouses to marry another individual. More importantly, some couples think it best to cut all legal and financial ties with their spouses.

In these cases, a divorce proceeding is the better option. In New York City, there are seven legal and accepted grounds for divorce. You also need to decide whether you’ll pursue a contested or uncontested divorce.

Process Service for Divorce

Should you pursue a divorce instead of (or after) a legal separation, entrust the process service to Serve Index LLC. Our professional process servers will serve the divorce papers within the timeframe and handle the Affidavit of Service. You’ll have peace of mind knowing that the court documents will reach the other party and move the case forward.

Get in touch to get a free quote.

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