Legal separation is when a married couple decides to live apart. In New York, legal separation is a court order with the terms (rules) of your separation. It is based on your separation agreement, and includes:
- how to share or divide money, debts, bills, and the things you own
- whether one spouse will pay spousal support to the other
- how you will handle custody and visitation if you have children.
What is the difference between separation and divorce?
Legal separation is different from a divorce, because a legal separation does not end the marriage. You will still be legally married and cannot remarry until you get a divorce. Legal separation is also different from informal separation. A legal separation is recognized by the court and an informal separation is not. If you have a legal separation agreement, you can go to court if your spouse doesn't follow the terms of the agreement. With an informal separation, you fix problems by talking or getting help from a mediator.
Legal separation is an option if you have religious, financial, or personal reasons for not wanting a divorce. Or if you are not ready to get divorced. Legal separation lets both of you keep health insurance and other benefits that you might lose in a divorce. It can be for as long as you both think is best. If you want to use it for a divorce later, you must live apart and follow the rules for at least one year.
How to make a Separation Agreement
If you want a legal separation, you need to write a separation agreement. It is a legally binding document with the terms (rules) of your separation. Writing a separation agreement is hard, but here are the basic steps:
- Gather all important money papers: Understand your money situation. This means reviewing documents such as bank statements, tax returns, mortgage statements, retirement accounts, loans and bills.
- Make a list of your assets and debts: Organize a list of your assets (things you own, like your house and car) and your debts (things you owe, like credit card debt and student loans).
- Decide what's most important to you: Think about your priorities. For example, if you want to focus on the children's well-being and plans for custody and visits.
- Talk with your spouse: Once you know your money situation and priorities, talk to your spouse. It helps to stay calm and focused on finding a solution that works for both of you.
- Get help or legal advice: You may need help from a mediator or a lawyer. A mediator can help you reach agreement. A lawyer can explain your rights, make sure your agreement is legally valid. If you later decide to divorce, your agreement can help with the process.
Last Reviewed: December 21, 2023