Sometimes you want to live apart from your spouse, but you do not necessarily want to end your marriage. Other times you and your spouse know divorce is right for you. Legal separation and divorce, however, are not the same thing.
Legal separation versus divorce
If you want to divorce or separate you must meet residency requirements. If you divorce, you or your spouse must have resided in New York for at least one year in a row. A legal separation has less strict residency requirements.
There are also grounds for divorce. If you divorce, it must be based on certain statutory grounds such as irretrievable breakdown of the marriage, adultery or cruel and inhuman treatment.
If you legally separate you can do so on any grounds that apply to your case. Living apart with a legal separation agreement can also form the basis for a divorce.
Divorce and legal separation accomplish different things. A divorce permanently and immediately ends a marriage. A legal separation does not end a marriage.
The separation agreement versus the divorce decree
Living apart is not enough to constitute a legal separation. A legal separation in New York can only be legally recognized if you have a separation agreement.
Once the separation agreement is drafted it must be signed in the presence of a notary public. Then it must be filed with the County Clerk. This makes your legal separation official and the agreement legally binding.
A divorce cannot be made legally binding you and your spouse negotiate a divorce settlement that will be approved at a court hearing, finalizing your divorce. Alternatively, you will need to go through the trial process to get a divorce.
The family law issues that will be addressed in a settlement agreement are similar to those of a divorce. They include:
- The division of marital property and debts
- Spousal support
- Child support
- Child custody and visitation
However, if you legally separate you have more leeway on how you want to resolve these issues. If you divorce, you must follow certain statutory guidelines.
A legal separation is not the same as a divorce. You and your spouse will have to carefully consider which option is right for you so you can proceed accordingly.