Legal Separation vs Divorce in New York

By staff
Updated Feb 09, 2024


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If you and/or your spouse have decided that you can no longer live together as a married couple, you can choose a permanent option (divorce) or a semi-permanent option (legal separation) in New York.

Read on to learn the difference between the two, and for help deciding which one is right for you.

Let’s get started.

What is a Legal Separation in New York?

Put simply, legal separation is when a married couple decides to live apart and divide their assets while remaining married. This means coming up with a contract known as a legal separation agreement.

The written separation agreement is the key feature of a legal separation. Without it, when a married couple decides to live apart, they are merely undergoing an informal trial separation.

You may have also heard the term “legal separation date” in the context of the divorce process. Now, this might get a little confusing, so bear with us: your legal separation date doesn’t necessarily have anything to do with the legal separation process.

Rather, a legal separation date merely indicates when your marriage became broken down beyond repair.

This date is important because it indicates when each spouse stops accruing marital property and marital debt (which can be divided by a court under New York’s doctrine of equitable distribution).

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What is a Divorce in New York?

With a legal separation, you live apart and lead independent lives while remaining married to each other.

A divorce legally dissolves your marriage. If you do not have a legal separation agreement, then you have to choose a divorce process, divide your marital assets and debts, and make decisions about alimony, child support, and child custody.

Family law has taken a page from corporate law and essentially treats your divorce the same way as dissolving a business partnership, with a final contract to sign to confirm the details of the split.

Think of yourself as business partners who co-own a business called “Our Happy Marriage;” before you can dissolve your partnership, you have to look at and divide the company’s assets and debts, and decide if one of you is going to buy the other out (e.g., the marital home, retirement accounts, joint bank/investment accounts, etc.).

If one of Our Happy Marriage’s assets is a minor child, you must decide on how to share that “asset” (e.g., sole or joint custody), how to ensure healthy growth (e.g., child support), and whether one partner owes the other money for their contributions to Our Happy Marriage (e.g., alimony/spousal support).

If you already have a legal separation agreement, the business of ending your marriage becomes much easier since you’re eligible for a “conversion divorce,” which is the easiest uncontested divorce process there is.

In a conversion divorce, you repurpose your separation agreement and use it to dissolve your marriage. There’s no need to reinvent the wheel if you’ve already worked out all your property division, custody, and support issues in your separation agreement.

However, one thing that may have to change is health insurance. If you were covered by your spouse’s health insurance plan during your marriage, that coverage would end with your divorce. (In fact, some insurance companies will remove you when you become legally separated.)

The Consolidated Omnibus Budget Reconciliation Act (COBRA) gives you the right to continue group health benefits provided by your spouse’s group health plan for 18 to 36 months. COBRA coverage gives you the breathing space to look into and secure your own health insurance after divorce.

After you have filed your divorce agreement with the court, assuming there is nothing wrong with your papers, the judge will sign and issue a final divorce judgment.

How Do You Obtain a Legal Separation in New York?

In New York, the legal separation process can be more complicated than simply coming up with an enforceable separation agreement, but it doesn’t have to be.

Suppose you and your spouse are on good terms but prefer to lead separate lives. In that case, you or an attorney can write an agreement covering issues like the division of marital assets and debts, child custody, child support, and spousal support (a.k.a. alimony or spousal maintenance).

A separation agreement is a legal separation because it is a legally enforceable contract filed with the county clerk.

Any two individuals, including you and your spouse, can contract amongst yourselves without the help of an attorney. You will, however, have to meet the state residency requirement for your separation agreement to be accepted by the court.

Despite a divorce attorney not being required, some people prefer to seek legal advice to ensure everything is on the up and up. It can sometimes help to have an expert in family law at your disposal.

You can get the ball rolling before you’re ready to tell your spouse because the attorney-client relationship guarantees you confidentiality.

Alternatively, you may need to initiate an action for judicial separation if your spouse has wronged you in a legally recognized way and you want the opportunity to prove it in court. This process operates a lot like a contested divorce proceeding.

The judicial separation came about when New York only offered fault grounds for divorce, including:

  • Adultery
  • Cruel and inhuman treatment
  • Abandonment for more than one year
  • Imprisonment for three or more years during the marriage.

The wronged party had to be the one to file for divorce by alleging their spouse had committed the bad action(s) that led to their divorce.

A legal separation was designed to give the wronged spouse a way to separate from their spouse without having to prove the ground – and without an actual divorce judgment.

This generated a lot of work for private investigators who were hired to catch the cheating spouse in the act. It also generated plenty of perjury and collusion among couples with irreconcilable differences, who had to invent a fault ground for their divorce and then commit perjury when asking the court to grant a divorce on fictitious grounds.

Since no-fault divorce was introduced in 2010, it has become quite extremely rare for a couple to file using fault grounds.

No-fault divorce means you can obtain a divorce judgment without your marriage having a history of adultery or other wrongdoing; all you have to prove is that your marriage has been “irretrievably broken" for at least six months.

How Does Legal Separation Differ From Divorce in New York?

Now that you know the basics of legal separation, let’s get into legal separation vs. divorce in New York.

The difference is surprisingly simple. While a legal separation is all about creating a legal separation agreement, the ultimate goal of a divorce action is obtaining a final judgment dissolving your marriage.

If you opt for a legal separation, you and your separated spouse maintain your legal relationship with each other – you can date other people, but you cannot legally marry anyone else.

If you opt for a divorce, then at the end of the process, you are no longer legally joined. However, you may still be joined as co-parents if you have minor children, and you may also be joined financially if one of you must pay alimony or child support to the other.

How Long Does a Legal Separation Last?

A legal separation can last as long as you and your spouse want it to. It ends when you either reconcile or undergo a divorce, which is a personal matter of your best judgment.

If you want to stay separated, but the deal you and your spouse worked out no longer makes sense, you can also alter and refile your separation agreement down the line.

Why Choose Divorce Instead of Legal Separation?

Divorce is the preferred choice for couples who:

  • are certain they want to end their marriage
  • want the ability to get remarried to someone else
  • do not want any legal ties to their spouse after the divorce is finalized.

Why Would You Get a Legal Separation Instead of a Divorce?

There are many reasons why a couple might choose legal separation over divorce, many of which are deeply personal.

For instance, you and your spouse might choose to remain married if your religion forbids divorce or if you’re not 100% sure you won’t reconcile.

Couples choose legal separation for a variety of reasons. The most common reasons, however, tend to be financial. For instance, when a couple remains married, they also remain eligible for health insurance through each other’s work.

A legal separation:

  • can be reversed
  • allows families to stay together (legally) for the sake of the children
  • is for those who are unsure if they’re ready to end their marriage
  • is an option for couples who can’t divorce for religious reasons
  • allows spouses to continue filing taxes together, leading to possible tax benefits
  • means that one spouse may still be eligible for health insurance coverage under their partner’s plan.
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Can you date during legal separation in New York?

Above, we briefly mentioned that adultery is a legally recognized ground for divorce in New York. Ordinarily, proving fault may impact the outcome of the divorce in the wronged spouse’s favor (e.g., a larger share of the marital property, or higher alimony).

However, suppose you have undergone a formal legal separation (meaning you’ve filed your separation agreement, which was approved by the court). In that case, your decision to date will no longer be considered adultery.

So the short answer to this question is yes – you can start dating again!

You’ll want to remember that merely living separately is not enough for a legal separation. This is one situation in which you’ll want to jump through those legal hoops to protect yourself.

How long is a legal separation valid in New York?

A legal separation is valid in New York for as long as you want. It will no longer be valid after you either reconcile or divorce, although, in the latter situation, you might still choose to go by your preexisting separation agreement.

How Much Does a Legal Separation Cost in New York?

When you submit a separation agreement to the county clerk, the filing fee is between $5 and $210, depending on where you live. If you live in New York City, you’ll need to purchase an index number from the county clerk for $210; outside of NYC, the county’s filing fee may be as little as $5.

In New York, a simple legal separation usually costs around $1,500. This includes the consultation fee, negotiating with the opposing party, contract drafting, and filing with the county clerk’s office.

However, additional expenses – legal fees, divorce financial analysis and/or valuation fees, etc. – will almost certainly arise while you’re negotiating the separation agreement.

As to how much those fees might be, the answer largely depends on your circumstances and how many areas of disagreement must be resolved between you and your spouse. If both of you are willing to be cooperative and make compromises, this will definitely keep costs down.

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