Is It Better To Get A “Legal Separation” Or Just File For Divorce?

A: Many potential clients ask whether it’s better to merely get a legal separation, or proceed with filing a divorce case. This Guide will explain the basic pros & cons of each.

1. New York has “No-Fault” Divorce now

Prior to October, 2010, one generally needed to make an allegation of fault against his/her spouse in order to get divorced. One common way around that was to do a separation agreement. The law provided that if the parties remained separated pursuant to a Separation Agreement for more than 1 year, then either could file for an uncontested divorce based on the agreement. This indeed was one of the leading reasons why people prior to the law’s amendment filed for separation as opposed to divorce. Now that New York passed “No-Fault” Divorce, however, there is no longer any reason to allege fault in order to get divorced – one only needs to state that the marriage has broken down “irretrievably” for more than 6 months.

2. Other reasons for getting a Separation versus a Divorce

Once the parties are divorced, then generally if one is covered by his/her spouse’s medical insurance, their insurance will terminate. This is because very few plans cover “ex-spouses.” As such, a leading reason why some people still choose to get a legal separation first is to preserve continuity of insurance coverage for at least another year. With the Separation Agreement, the parties can resolve every other issue which would otherwise be brought up in the divorce. The agreement would cut-off accrual of marital assets & debts, and can equitably divide them. The agreement can also provide for custody, visitation, maintenance (i.e., alimony) & child support. The only thing the agreement cannot do is actually terminate the marriage. That takes a divorce proceeding – which either party can file for upon the expiration of 1 year (or later) from the date the agreement is signed.