When married couples break up in New York City, their options are limited as to how they can proceed. Many marriages are dissolved through divorce, but, in some other instances, the couple may instead choose to separate. This is more than simply going their own ways. It involves a legal separation that helps to establish that they are no longer responsible for one another.
What is a Legal Separation?
While a legal separation may be drafted by the couple, on their own, it typically requires the assistance of an experienced New York City attorney. This is because it often involves some of the same issues that would be addressed in a typical divorce. The division of property, financial responsibilities, and the custody of any minor children would all have to be resolved in a legal separation.
Also similar to a divorce, a separation is initiated by one party filing a complaint against the other in court. The complaint will name both the plaintiff and defendant, as well as any minor children involved in the situation. Details about the children and separating couple will also be included, such as birth dates and the date of the marriage. The complaint will also explain why the separation is being sought and how residency will be affected for the parties involved. The plaintiff will also have to state what remedy is being sought through the separation.
The grounds for a legal separation are:
In cases where the Supreme Court of the State of New York grants a Judgment for Separation, the grounds will encompass the same grounds as divorce, but with slight variations. For example, a charge of abandonment may be for under a year. The condition of nonsupport for which a separation may be granted may not be used in filing for a full divorce.
Some people believe that a couple will be automatically declared divorced, after one year of legal separation. While that may be true in some jurisdictions, this is not the case in New York City. A divorce filing must still proceed, but, after one year of separation, either party may petition the court for a “no fault” divorce.
Why Do Couples Pursue a Separation Instead of a Divorce?
The most common reason couples opt for a legal separation is to make the divorce easier, down the road. In the meantime, they can see how the separation affects their lives and if their relationship problems really are irreconcilable. In instances where the couple decides that they do want to divorce, the separation serves as the grounds for the divorce and the process is simplified. In the divorce, the terms of the separation will typically be upheld as the divorce obligations. Whatever custody and support obligations were agreed to in the separation will continue uninterrupted, following the divorce.
Another reason to choose a separation is that it can allow one spouse or the other to retain benefits that would otherwise be terminated by a divorce action. For instance, one spouse would still be eligible for healthcare coverage on the other’s policy. Additionally, the Uniformed Services Former Spouse Protection Act and Social Security Administration require that a couple must remain married for 10 years in order to be eligible for benefits. By taking the legal separation instead of the divorce, the couple can still retain their eligibility for these types of programs.
Another factor that can influence the couple’s decision not to divorce may be the beliefs of their religion. Many religions either frown upon divorce or outright prohibit it, because they feel it violates the sanctity of marriage. To avoid scorn from their church and to also end an intolerable relationship, the couple may legally separate. While they can live separate lives and end their relationship, they’ll still be married in the eyes of their church. This helps the couple obey their religious vows , while also doing the best thing for their family.
In some cases, a legal separation gives a couple an opportunity to see how they really feel about ending their relationship. It provides them with relief from a destructive relationship, while still allowing for the possibility of reconciliation. When divorce does become necessary, the couple can pursue that option without the need to reevaluate how assets and debts are divided or how custody will be affected. The legal separation has already dealt with these issues.
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