What is a Legal Separation in New York?
In the United States, there are three options for legally ending a marriage. The first, and most common, is divorce, a court proceeding that dissolves the marriage entirely. The second is annulment, a rare occurrence that is legally comparable to having never married in the first place. Between divorce and annulment lies a third way: legal separation.
Recognized in New York under DRL Law Section 170, a legal separation is a court proceeding that is substantively no different from divorce. In both cases, the parties to the action go to court, and the court will issue a binding order that divides marital property, awards custody and control of children, and addresses the payment of child support and alimony. The only fundamental difference is that in the case of legal separation, the parties remain married.
As with divorce, the Court may issue preliminary orders of child support, spousal maintenance, exclusive use and occupancy of the marital residence, award interim custody of children pending the final hearing, and potentially restrain either party from incurring debt or disposing of property. However, unlike a divorce, the Court cannot issue a divorce judgment after a separation agreement is signed. The parties must waive the divorce action in order to enter into a separation agreement, in which case the separation agreement serves as the final judgment of divorce.
Couples might choose legal separation instead of divorce for any number of reasons. For example, they may do it to obtain an immediate order for custody and child support — something that can take months to obtain in divorce proceedings, due to the demands of a contested action. Also , legal separation does not end a marriage, meaning that the parties remain legally married, which in some cases still allow one party to benefit from insurance coverage under the other’s plan. In addition, a legal separation could allow a business-oriented spouse to avoid a potentially damaging discovery dispute related to business records. For example, if one party has a family business, the other could file for legal separation, which would allow them to end the marriage without disclosing all records about the business.
Likewise, a spouse seeking spousal support (alimony) might want to pursue legal separation if he or she has been out of the workplace for a period of time, in order to obtain an immediate support award, but without triggering the 36-month time limit on receiving spousal support after a divorce.
An important note of caution, however: just as a legally separation does not end a marriage, it also means that couples remain married to each other for tax purposes. In some cases, this means that they will have to file a joint tax return, even if they really don’t want to. If a party has obtained a preliminary order for child support or spousal support, they cannot file single as a head of household, they are stuck filing a joint tax return, which means that they will have less control over their taxes. In addition, signing a separation agreement means that a person cannot later apply for interim spousal support or interim child support, meaning that they lose the opportunity to seek a higher support award.
Given all of the downsides of legal separation in New York, divorce is usually the better option except under unusual circumstances.
The Costs of a Legal Separation
When you elect to legally separate from your spouse, you may lose many financial benefits you would not have lost had you simply chosen to get divorced. A legal separation is still a legal status, and any assets you acquired before the legal separation date or during the separation remain marital assets subject to equitable division during divorce proceedings. With divorce, however, you are entitled to a disposition of your property according to New York’s equitable distribution statutes. Once you are legally separated, the marital estate essentially becomes frozen. A legal separation is similar to a test drive for divorce; you don’t discover all the positive aspects of divorce until after the marriage has ended.
Both parties in a legal separation must continue to maintain health care grounds with the other spouse as the primary insured. If your spouse loses health insurance coverage, you may face increased premiums to cover your entire family on one health insurance plan. The premium cost of maintaining individual policies for both you and your spouse may even exceed the cost of one plan.
In New York, a legal separation does not terminate the marriage, so you will remain responsible for spousal support during the legal separation period. At the time you divorce in New York, however, your spouse will be entitled to alimony (the dissolution of all financial ties between you and your spouse). You cannot change your terms of spousal support or the duration of spousal support because of the separation, either. The duration of payment and the actual amount will be a part of any eventual divorce proceedings.
Tax year assets will still be marital assets even with a legal separation. You may pay more taxes because of the legal separation, and you can’t write off your alimony payments in New York. You may still have to pay taxes on income from properties used for business, since the law recognizes those assets as marital assets.
Psychological and Emotional Ramifications of a Legal Separation
When clients come to us, they are usually on the brink of a decision to separate or divorce. They might have already left the home and be living apart. Others are still living under the same roof, doing their best to keep up appearances while contemplating the next steps they will take. As a result, the separation itself is often the easy part. The divorce, however, is where the problems can really begin. While many people manage to find closure through the divorce process, some choose to prolong it through a legal separation. Sometimes, separation may be a better choice for a particular family and for its unique circumstances. But when you make this decision, you may be dealing with additional emotional fallout. Separation may push the reset button on the family dynamic. In most cases, married couples go through phases when times are good and bad, and when they must struggle to work together. In other words, couples are generally in a cycle. When kids are involved, however, separating could mean ending the cycle of their parents living together in one household. The change of family dynamics, combined with potentially added stressors from a legal separation, can lead to heightened tension, anger, and in some cases, signs of depression. Staying married enables couples to work together to figure out their mistakes and stay in the familiar routine. Separation can feel like the last straw in a dismal relationship. Ultimately, it is an ending of some sort — one that can force people into a panic. The decision to go through a trial separation was made for a reason, and now they must deal with the fallout. That uncertainty is enough to make anyone fearful. As the months turn into years, they may find it even harder to move on. Legal separation is often viewed as a path to reconciliation, while divorce is a finality — albeit one that should also prompt people to move on. Therefore, when the benefits of separation have run out and there is no lasting hope for reconciliation, a person may be more likely to face emotional trauma and difficult decisions when prompting them to prepare to actually end the marriage.
The Legal Necessities
Legal obligations and restrictions: if you enter into a legal separation agreement in New York, the legal process will obligate you to do certain things and might limit what you can do. For example, if you are married when you enter into a legal separation agreement, you cannot remarry prior to your divorce (if you later get divorced). You may be required to obtain insurance or other financial requirements under the legal separation agreement .
Unfortunately, if you do not comply with your obligations under the legal separation agreement, you are still bound by its terms until it is broken by a court. This is an important aspect to consider, since you could spend long periods of time paying for obligations that go beyond the legal separation agreement and are no longer desired. Sometimes, the emotional and financial costs associated with a legal separation agreement can be so great that people simply stay "legally separated" for decades, rather than remarry.
Impact on Medicaid and Health Coverage
Addressing health insurance and medical bills are not typically the first thoughts that come to mind when embarking on a legal separation. However, in New York, that is often a significant concern that must be addressed up front on either side of the equation. Most people already have their own health insurance through an employer or a privately purchased plan, and a legal separation can disrupt all of that. For example, A legal separation will require a major shift in health insurance arrangements for all members of the family.
When parents separate, children are usually granted coverage under one parent’s plan. (Parents who have joint physical custody must work out the insurance issues with a little more precision.). If an unsuspecting spouse, seeking a legal separation, is under the assumption that if he or she is covered by the other spouse’s health insurance, coverage will be unchanged from spouse to spouse and from parent to child, then he or she may soon be in for a rude awakening. Once separated, health insurance for the non-custodial spouse and children quite likely will need to be re-arranged.
The key to understanding legal separation and its impact on health insurance is that even a temporary separation under a separation agreement may not permit a spouse to retain the same level of coverage under an employer-sponsored plan. Especially if the employee is not the plan holder, a temporary separation does not qualify as an employee status change. So the employee is likely to face some major decisions when it comes to health coverage.
The risk here is that both parties will be spending money down the road unnecessarily or at least paying a lot of money without having any coverage. For instance, one party may assume that they are covered under the other party’s plan and when the other party’s employer finds out about the separation, one party is terminated from the plan and left uninsured until they can find a new plan.
Alternatives to Legal Separation
Alternatives to Legal Separation in New York
For some couples, relocating to different households is a better option than a legal separation or divorce. Some lawyers will advise you that moving out of the home and living separately with the intention of perhaps reconciling is not a good idea. Although that is mostly true, there are certainly times when that scenario is the better option for the couple. Sometimes those times involve children.
For a couple with multiple children, it may make more sense to have the mother move into one household with the children and the father into another household, rather than to have them continue living under the same roof. That way, the children don’t have to choose which parent to stay with each night. The children’s bedrooms can be set up in both homes for convenience. The scenarios would be discussed with the children prior to moving out, but if the children witness healthy discussions about their needs, which are respected, they may feel better.
Trial separations are common in marriages that are on the brink of divorce . In some cases, it may be part of a therapist’s recommendation that you try a trial separation in order to see if the time apart is truly what you need to move forward in your separate lives.
A trial separation is different than a "legal" separation in that the term is not necessarily accepted by the court system. Trial separations are just that: trials to see if time apart works. There are no formal agreements in place and, as such, there is no court involvement. You may discuss things like child support and custody with your spouse. If you are using divorce mediation, those discussions may be formalized with the goal of coming to agreements that will later be incorporated into divorce paperwork.
In most cases, a trial separation is part of the time before divorce, whether the trial period lasts for a few months or a year. It is not a replacement for divorce, but rather a way to figure out if you need a divorce.
Almost always, however, divorce is a better option. The legal separation and its rules remain in place until one of the parties or a judge requests a divorce. A trial separation allows you to essentially ‘date’ while separated and move on with your life.