Couples have two options when their marriage dissolves: divorce and legal separation. Either can be beneficial, depending on the circumstances for the problems in the marriage. If you and your spouse are having difficulties in your marriage, before you file for divorce you might want to consider a legal separation instead.
What Is Legal Separation?
Couples can decide to separate and live apart when they need a break from their marriage. They can choose to do this on their own, but this is not considered a legal separation. The other choice is to draft a written separation agreement with help from our divorce lawyers in Long Island.
A written separation agreement, when completed corrected and filed with the court, becomes a legally binding contract between the separating couple. The document can stipulate a wide range of important details, much like you would find in a divorce, including:
Separation vs. Divorce Pros and Cons
One benefit of a separation agreement is it can be used as a precursor for a divorce. If the couple determines their marriage is over, they want to move on with their respective lives, and they have been legally separated for a year or longer, the divorce process is much faster.
A divorce, on the other hand, allows the couple to dissolve their marriage so parties are free to move on with their lives as they see fit. There can be a waiting period of a few months to over a year, depending on how amicable the couple is with each other, if there are minor children, and other such factors.
So, divorce is not always faster. The couple will also have to make decisions and deal with issues related to properties, assets, debts, the custody of the children, visitation schedules, and so on. Sometimes, it can be difficult for couples to come to an agreement on certain issues.
During a divorce proceeding, if they cannot be resolved through negotiation, then the court would make decisions regarding unresolved issues for the couple.
Another benefit of a legal separation is it allows the couple to still take advantage of the benefits of being married. For instance, you can still remain on your spouse's health insurance policy. Tax returns can also still be filed jointly, which often results in lower tax liability and potentially higher returns.
One disadvantage to a legal separation is that the couple is still legally married. This means you cannot legally remarry. If you are to the point where you want to move on with your life on your own, then a getting a divorce would be a better option.
Why Legal Separation?
- They might be at the point where they still love each other, but cannot live together.
- They could agree that being legally separated is easier on their children than telling them their parents are getting divorced.
- They may want to see how their lives would be if they lived apart.
- They could be attempting to resolve marital problems, and living separately gives them the space they need to work through these issues and work toward a reconciliation.
- Some couples legally separate because of religious reasons when their religion does not allow for divorce.
Regardless of the reasons for the separation, having a legally binding separation agreement in place protects both parties and their interests.
Can You Reverse a Legal Separation?
With a legal separation, you are still legally married, so, if you decide to reconcile, the process is reversible. You merely inform your Long Island divorce lawyer you want to cancel the separation agreement. Provided your spouse agrees, your lawyer then files the appropriate forms with the court to release you and your spouse from the agreement.
Some couples might leave the agreement in place even after they move back in together. They consider this a "trial" period to truly see if their marriage will work. This way, if things start falling apart again, they do not have to refile their legal separation.
All they would have to do at this point is either return to a separate living arrangement or request their legal separation be converted into divorce proceedings through their respective divorce attorneys in Long Island.
Financial Benefits of Legal Separation
Legally separating can have some financial benefits over a divorce. Since the couple is still considered legally married, they have the same entitlements they had previously, like health insurance and tax benefits. Other financial reasons a separation can be better are it:
- Ensures the couple meets minimum marriage requirements for retirement plans and Social Security benefits.
- Allows the couple to continue to receive various military benefits.
Legally Separated Living Together
In order to be legally separated, a couple must live separately and apart. What this means is each spouse has to live their own life "separate and apart" from their spouse. Yet, this does not mean they cannot still reside in the same home. It just requires making some changes to the home's dynamics.
For instance, the couple might decide to divide up the marital home into different "his" and "her" sections. The wife might choose the master bedroom, master bathroom, and living room as her sections of the home. The husband might choose the basement, a guest bedroom, and a different bathroom as his sections of the home.
In regards to the kitchen and laundry room, they could decide to share these areas as common areas. However, they must prepare their meals separately and do their own laundry to ensure they are truly "living separate and apart."
If the couple is amicable with each other, dividing the home could be a viable option during a legal separation if they both would have financial struggles trying to set up a second household. Some parents will also do this if they are amicable, work different schedules, and want to maintain a more stable environment for the children so that both parents are around.
What option is better for families and children?
Young teens may be more open to the concept of divorce, but they often have problems accepting the outcome and finality of divorce. Plus, they, too, can feel like they were the cause for the divorce. So, again, a legal separation could alleviate some of their anxieties about divorce.
It really comes down to what is best for you and your family. If your children are already estranged from the other parent, divorce could be better for them. However, if they have strong relationships with both parents, a legal separation first can lessen the blow of a divorce later should you decide to not reconcile.
Whether you are considering a legal separation or know your marriage is over, you will want to contact an attorney from MONTEFUSCO | PAMMER.
Blog Author: Attorney Robert H. Montefusco
Robert H. Montefusco is the founder of MONTEFUSCO | PAMMER and is here to help you get through your family law case.
Visit his bio to learn more about he compassionately helps clients navigate the divorce process.
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