When two people decide their marriage isn’t working, they may file for divorce right away. However, others may opt to separate and then divorce down the road if reconciliation is no longer a viable option. For you and your spouse to make the decision that works best for your situation, you first need to understand what the differences are between the two options.
A legal separation is similar to a divorce in many ways. The couple generally ceases to live together, though there may be exceptions, and they have no intention of reconciling the marriage in the future. However, because a legal separation is filed within the courts, the couple is considered legally separated versus married.
During a legal separation, the court will decide how to make decisions regarding child support, custody, and parenting time, and which expenses will be paid by each spouse. But the couple is not legally divorced.
Legal separation is an option for couples who choose to avoid divorce for personal or religious reasons. If desired, the couple may file for divorce at a later date. Couples may also choose legal separation if they wish to leave certain options open, including:
- Filing jointly for tax purposes
- Financial opportunities
- Staying on one spouse’s health insurance
- Reconciliation at a later date
Divorce is the legal ending of a marriage. As with legal separation, a judge will issue orders regarding child support, custody and parenting time, and spousal maintenance. In a divorce, the Court will also issue an order for equitable distribution of assets and liabilities. However, the marriage is also legally dissolved, through a Judgment of Divorce, which must be signed by a New York Supreme Court Justice. If the couple was legally separated prior to the divorce, the judge may use the orders issued in the prior case as precedent for the divorce case.
Sometimes the couple will file a separation agreement, then wait a year before filing for divorce.
Consider Legal Assistance to Help You Make a Decision
To determine whether Separation or Divorce makes sense for you, under your circumstances, you need to obtain experienced legal counsel. Doing so will give you the opportunity to learn more about what each route entails, including potential costs.
Additionally, your attorney can also help you strategize your case if you do choose to divorce. This includes going over you and your spouse’s financial stability, expenses, and other important information that play a role in the outcome of your case.
For instance: If you are looking to receive spousal maintenance, you and your attorney will need to go over facts such as the number of years you were married, your income, the lifestyle you are accustomed to, and any non-monetary contributions you made during your marriage, among other things.
If you are considering divorce or legal separation in New York, the legal advice of a legal separation attorney or a divorce attorney can be indispensable. The laws surrounding separation and divorce are often complicated, and an attorney can go over your options to determine the best course of action for your situation.
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