New York law offers a “softer landing” for the parties, giving both a taste of what the future holds for couples who follow through with a divorce. Legal separation permits a couple to learn what it’s like to have a life apart.
The Difference from Some Other Jurisdictions
Because in New York, legal separation, states the rights and responsibilities of both parties, each spouse can use the separation agreement as either a short- or long-term alternative to divorce. New York statutes for legal separation requires the details of many of the issues in divorce, such as child custody and support, spousal support (if any), and division of property and/or assets.
Some states’ laws treat separation agreements as only a
short-term remedy. A preface to the dissolution of a marriage. Conversely, New
York, by including the rights and duties of each spouse in legal separation, if
the parties remain unsure if they want to permanently and legally want to
dissolve their marriage, they can remain living separately over the long-term.
Should a married couple in New York decide to live apart,
but are not convinced they want a more permanent solution (divorce), they can
do so for as long as they deem necessary without fearing custody, support, or
property division problems. This solution offers married couples the
opportunity outlines to reduce the inevitable spousal fighting that occurs
during the divorce process, which effectively declares only the attorneys
representing each spouse as “winners” during many divorce actions.
Legal separation differences in New York versus many other
states have other components. For example, while some states recognize
negotiated voluntary separation agreements only, New York spouses can petition
the court for a legal separation judgment if the parties cannot settle on a
satisfactory agreement.
New York law also allows couples to avoid marriage
dissolution for religious reasons. Since some religions prohibit divorce, a
legal separation with the major spousal rights and responsibilities already
stated, couples can avoid divorce for as long as they would like, yet still
live apart. In states that treat separation agreements as temporary situations
only, they force married couples to settle their differences in a court of law.
There is another advantage for married couples legally
separated in New York. Since they remain married in the legal interpretation,
they can preserve their common benefits, such as health insurance and surviving
spouse Social Security benefits. Legal divorce puts spousal entitlements at
risk, sometimes including termination.
At-fault Divorce
It was not until 2010 that New York became the final state
to recognize the popular no-fault divorce. While couples do not need to be
legally separated to become divorced, to get a no-fault divorce spouses should
be legally separated for one year or more.
If there are “at fault” grounds for divorce, such as
abandonment, couples can bypass legal separation. However, fault grounds have
additional requirements besides simply making an accusation. For example, with a
filing for cruel and inhuman treatment, the complaining party must file within
five years of this poor behavior, which is an effective statute of limitations.
The complainant also must be able to show solid evidence of the spouse’s bad
behavior.
At least New York marital law recognizes that married
couples sometimes settle their differences amicably. This state’s regulations
permit couples, even those who cannot “work out” their problems, to have a less
contentious divorce action, unless their property division or child custody
issues change dramatically during their recorded legal separation.
Source: http://info.legalzoom.com/advantages-legal-separation-vs-divorce-new-york-27139.html
