During the consultation phase, a common question from an aggrieved spouse who is not ready to "pull the trigger" on a divorce action is whether
s/he should seek a legal separation in lieu of a divorce. Divorce is daunting: it is often expensive, time consuming, and emotionally and/or physically draining on the divorcing parties. Faced with the consequences of filing for divorce, many people throw out the term "legal separation" as what they may believe may be a more palatable course of action. As always, it depends on the facts and circumstances of a particular case. Parties should note that the Court has virtually total control over the marital relationship and all it entails upon divorce. However, a legal separation limits the Court’s authority, and as such, the Court cannot do things that it could do in a divorce action, including but not limited to equitably distributing marital property. Thus, any changes to jointly held property must be addressed by the parties, not the Court.
The grounds for divorce are guided by Domestic Relations Law§170, while the grounds for legal separation are guided by Domestic Relations Law §200. Divorce is when the marital relationship between spouses is irreversibly terminated (as are all of the concomitant obligations and benefits), whereas a legal separation is more akin to a reversible modification of the marital relationship. Both status determinations are made by a Court. To be clear, it is
insufficient for spouses to discontinue residing with one another and simply call themselves "separated."
With the advent of Domestic Relations Law§170 (7), known colloquially as the "no fault divorce" grounds, it has never been easier to sever the marital relationship and obtain a divorce. However, there does not exist any "no fault" separation, and only five (5) grounds for separation exist pursuant to the Statute that permit a Court to grant a Judgment of Separation, as follows: (1) cruel and inhuman treatment that endangers physical or mental
well being so as to render cohabitation unsafe or improper; (2) abandonment; (3) neglect or refusal to provide financial support where chargeable with such support; (4) adultery; (5) three (3) or more years of imprisonment. There is a caveat: pursuant to Domestic Relations Law§ 170 (6) if parties live separate and apart from each other for one year or more after executing a Separation Agreement, they may be eligible for a "conversion divorce."
Similar to settlement agreements in divorce actions, separation agreements must be formally executed and acknowledged by the parties. These are contractual obligations setting forth the rights and obligations of each party and may include provisions regarding support (maintenance and/or child support), debts, child-related issues, and testamentary issues.
Notwithstanding the above, there may still be reasons to seek a legal separation. For example, the termination of health care coverage that occurs upon a Judgment of Divorce does not occur in a Judgment of Separation. In addition, some retirement plans may be willing to divide retirement assets (including but not limited to pensions) with the lesser legal decree of a legal separation. Please call (516)746-2300 to discuss your options with an