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Should I Get a Legal Separation or Divorce?

Know Your Options for When Happily Ever After Fades Away

If you are contemplating ending your marriage, don’t make a decision without understanding your options first. While it can be easy to make emotionally-charged decisions when your marriage doesn’t go as planned, it’s important to keep in mind that every legal decision you make has the power to influence your future and family. This is why we want to equip you with the information you need to get some clarity and make the best possible family legal decisions.

Disclaimer: We are not offering any legal advice in this blog content. This is purely for information purposes only. If you would like to discuss your situation with our Orange County divorce lawyer, please contact us at (845) 605-4330 to learn more.

What Is Divorce?

New York family courts define divorce as the “legal ending of the marriage between a husband and wife so that each is free to marry again.” Divorce is a dissolution of marriage that is handled by the court and remains final. It is often a long and complex process because it involves the division of assets, child affairs and other important decisions.

However, both spouses do not have to agree to the divorce. If one spouse files for a divorce against the other’s wishes, then it may become a contested divorce. On the other hand, if both spouses are able and willing to reach mutual agreements without battling their issues out for months and years in court, then their divorce may be uncontested.

What Is Legal Separation?

A legal separation means spouses remain legal married and cannot remarry. It can be accomplished when both spouses execute a separation agreement. By definition, a separation agreement is a written agreement on:

  • support for the child(ren)
  • spousal maintenance payments
  • division of marital property
  • responsibility for debts (bills)
  • residence of child(ren)
  • childcare
  • other related issues

This agreement must be formally signed by both parties and notarized, and covers the period before divorce (if the spouses choose to do so) but after the separation.

Similarities & Differences

A divorce and legal separation are similar in that both spouses live apart according to the terms of their legal agreement. Both involve the division of assets and debts and the determination of child custody, support, visitation, and spousal support. Essentially, a divorce and legal separation allow for both parties to live apart, pay their own bills and decide what happens to their children, along with addressing other important issues.

There are several differences between a divorce and legal separation, however. For starters, a legal separation does not legally terminate or dissolve a marriage unlike a divorce. As such, it does not allow for both spouses to remarry, while a divorce does. If a legally separated couple decide to reconcile, they can legally restore their marriage much easier and faster than if they were divorced.

In addition, a legal separation does not involve the court and can simply be accomplished via a separation agreement that is voluntarily drafted and signed by both parties with the help of their lawyers. With divorces however, spouses must go through the New York court system and are required to sign several court orders relating to their divorce.

Legal separations allow couples to retain each other’s healthcare, social security benefits and other benefits that they otherwise couldn’t access with a divorce. They also allow couples to make decisions for each other in the case of incapacitation, such as financial and medical, because spouses are still deemed next of kin in legal separations. Unlike in legal separations, divorcing spouses do not have liability for each other’s debts nor rights to each other’s property when one spouse dies.

Not Sure Which Choice Is Right for You?

It can be difficult to determine which whether a divorce or legal separation is right for you, but our Orange County divorce attorneys aim to help make that decision easier. We will listen to your situation and understand your needs to determine the best possible legal solutions that could benefit your individual case. To speak with our legal advocate, contact the Law Office of Dennis R. Vetrano, Jr., LLC online or by calling (845) 605-4330!