Is Legal Separation Better Than A Divorce In New York
Which is the best exit strategy when your marriage hits rock-bottom? What to the New York family law courts have for you when you think that you can salvage it, or you both want to stay legally married at the end of the proceeding?
The ever dynamic New York family law system is as dynamic as the state, and this is why you can get a legal separation when you don’t want a divorce (yet).
How to obtain legal separation in New York
There are two ways to go about it.
First, you both enter into a New York Marital Separation Agreement. For the agreement to be acceptable, it must contain a certain language, and it should be signed and acknowledged in a certain way for it to qualify as a separation agreement.
You cannot, and you shouldn’t try preparing your own Marital Separation Agreement in New York. With the help of a family law attorney, have the separation agreement carefully drafted so that it accurately represents all your intentions and for it to be enforceable in future.
Secondly, you can get a Judgment of Separation. All the actions for this legal judgment of separation proceed in the same way as an action for divorce. The only difference between a legal separation and a divorce is that you remain married at the end of the Judgment of Separation. A divorce is final as it leads to the dissolution of your marriage vows.
Grounds for legal separation
Just like in a divorce, you must have specific grounds for getting a Judgment of Separation according to the New York family law. Also, you should know that you can apply for legal separation after signing the legally binding Separation Agreement contract. Some of the valid grounds for a legal separation include:
Cruel and inhuman treatment
Failure to offer support
Consequences of not abiding by the separation agreement
Contrary to what you may think, a Marital Separation Agreement is a contract enforceable in a court. Contracts are legally binding. So, if your spouse fails to abide by the terms of the separation agreement, a money judgment is often sought and entered against him or her. The decision lies with you.
Why opt for a legal separation, not a divorce?
Most married couples have hopes of reconciliation, hence the separation.
Health insurance – some couples enter legal separation for one spouse to remain covered under their spouse’s health insurance policy. Staying on one medical plan, you save money.
Disadvantages of legal separation
Although it may save you money or give room for reconciliation, legal separation and signing the Marital Separation Agreement in New York isn’t a walk in the park. Some of the disadvantages include:
Enforcement – getting a legal separation judgment is harder than getting a divorce judgment. In New York, you will find that a divorce judgment is readily enforced with a quick application to the court that issued the Separation Agreement. On the other hand, enforcement of a separation agreement is a whole separate lawsuit in which the breach is first proved in court at a full trial. With a trial involved, getting the separation will take months.
Also, if the trial is successful, the court provides limited relief in the form of a specific performance or even an award of damages. The remedies available for the violation of the separation agreement are tougher than those involved when there is a breach of contract, and you just file for a divorce instead.
Is divorce better than a legal separation?
If after the separation agreement things don’t work, you will have to decide whether to get a divorce or a legal separation. While we cannot tell you what to do, your religion may forbid divorce; it is clear from the discussion above that the separation agreement offers the necessary flexibility to help you settle the divorce. You can expedite the process by filling above given steps and get a copy of your sample marital separation agreement.
Whether you live in New York, Buffalo, Rochester, Yonkers, Syracuse, Albany, New Rochelle, Cheektowaga, Mount Vernon or any other city of New York, you can use our legal forms easily.