long island legal separation lawyers
When a couple decides to no longer live together and separate, they might be separated but they aren’t legally separated. Legal separation makes this separation legal and provides a legal framework for the relationship going forward. It protects both spouses financially and can result in some advantages if done correctly. A Long Island Legal Separation lawyer knows the Long Island courts and can help craft the possible legal separation agreement.
What is legal separation?
Legal separation comes in two varieties in New York. First is the more common voluntary legal separation which is entered into voluntarily. Less common is the judgment of legal separation. It is a process initiated by one spouse against another spouse. It is not voluntary and a judge makes the decision in the case.
Legal separation is a legal contract between two spouses concerning their separation. It is a legally enforceable contract that details living arrangements, child custody arrangements, distribution of marital property, distribution of bills, spousal support, child support, and anything else that the parties want in the agreement. The agreement needs to be voluntary between the two parties.
Generally, New York legal separation agreements become null and void when a couple begins living together again with the intention to reconcile. The couple can insert a clause into the agreement that requires a second legal agreement to void the legal separation agreement. This allows couples to attempt reconciliation without voiding their legal separation. Legal separation is very flexible.
How is legal separation different from divorce?
Legal separation has similar attributes to divorce but also has substantial differences. Like divorce, legal separation allows couples to make agreements on property, child custody, and support. Similarly, it allows the couple to separate property and begin living separate lives. Their finances are no longer intertwined so one spouse is protected from the financial problems of the other spouse.
Unlike divorce, legally separated couples can still file joint income taxes. There can be significant financial benefits for this. Couples can also share health insurance coverage. With divorce, neither of these are possible. Couples are required to be married for at least 10 years for certain retirement benefits like Social Security and pensions. Legal separation can help make this happen.
A Long Island Legal Separation lawyer can help explain the differences and when it is more advantageous to divorce and when it is more advantageous to seek legal separation.
What is the process for legal separation?
The process of voluntary legal separation is relatively simple. One of the spouses can contact a Legal Separation lawyer locally on long island. They can explain what they want to accomplish and what they want in the agreement. The Legal Separation attorney can draw up an agreement for both parties. The other spouse can contact their attorney and have their attorney review the document. Some negotiation may take place between the spouses and their attorneys.
When an agreement is made between the spouses, they will sign the agreement in front of a Notary Public. After signing the agreement, the agreement is filed in a long island court with jurisdiction over one or both the spouses’ place of residence. Once filed, it is a legally enforceable agreement. No judge needs to approve this agreement.
A judgment of separation follows a very different path and is an order made by a judge legally separating a couple. It requires fault on the part of one spouse. Any judgment of separation case needs an attorney from the start to ensure that rights are protected since many of the decisions can carry forward to a divorce.
Legal Challenges to Legal Separation
There are only a few ways to challenge a legal separation agreement made by two parties. Since the agreements are voluntary and legally binding, they can be enforced in a court of law. It’s important that all parties to the agreement know exactly what they are signing before agreeing to the legal separation. It’s not uncommon to insert clauses into the agreement that can make for an inequitable divorce since some clauses concerning spousal and child support can be survivable after a divorce.
Once an agreement is filed with the court, there are ways to challenge the agreement, but they are limited to 4 areas. The burden of proof can be quite high in order to get the court to scrap a legal separation agreement.
1. Fraud: If one spouse decides not to properly disclose assets in the separation agreement, courts can decide to nullify the agreement if they feel the spouse was not being honest and intended to deceive.
2. Coercion: If one spouse felt coerced by the other spouse or otherwise felt under duress when signing the agreement, then the court can determine that the agreement is void and unenforceable.
3. Conflict of Interest: If the couple chooses to use the same attorney to draw up the legal separation, one party may later claim that the agreement was not fair to them. This is why each spouse should have their own attorney. If only one spouse has an attorney then it should be clear from the outset who the attorney is working for.
4. Unfair: If the legal separation agreement is grossly unfair to one spouse, then a judge may feel the same way and strike down the legal separation agreement.
A long island Legal Separation lawyer can help you craft a legal separation agreement that can stand up to any legal challenge. They can also help you challenge any agreement that was made with one of those four problems listed above.
With knowledge about what legal separation is and the process to obtain it, a decision on whether to take the legal separation route is easier to make. If you are on Long Island, you need a Long Island Legal Separation lawyer who will protect your rights and ensure that an equitable agreement is made between both parties.
How Should We File Our Taxes During a Legal Separation?
Your filing status during a legal separation depends on many different factors. First, the IRS uses your marital status as of December 31 of the tax year you and your spouse plan to file. If you are married on that date, but are thinking of separating, the IRS still views you as married.
Therefore, you and your spouse can choose between filing jointly or separately. Filing for a separation or divorce that is not finalized by the end of the year means you must use the Married, Filing Separate status.
Coming to an Agreement with Your Spouse
If it is possible to reach an amicable agreement with your soon-to-be ex-spouse, you can file Married, Filing Jointly if this status benefits the both of you. Speak with an attorney and tax advisor about the pros and cons of pursuing this option.
Typically, you may have a lower tax burden if you file jointly. This depends on factors such as:
• Income of both spouses
A primary disadvantage to filing jointly while going through a divorce is you and your spouse will be equally liable for the return. This includes any interest and penalties, and tax deficiencies. However, one way to possibly protect yourself against this is with a Tax Indemnification Agreement. This document is an agreement that your spouse will repay you for their tax liabilities.
Protecting Yourself during Divorce Proceedings
In addition to an agreement for handling tax liabilities, you can also protect any refunds you may receive. The separation agreement should outline the way a refund is issued. If the IRS sends a check, make sure it is in both names.
Absent this, you should have a written agreement that the recipient of the check will pay the share to which the other spouse is entitled. Direct deposit refunds should go to a joint account. Also, keep in mind that you are not obligated to equally share the tax liability or refund. Do what is fair and consistent with how other marital property is divided.
Acceptable Filing Statuses When You’re not Filing a Joint Return
If your legal separation is final by December 31, you can file Single under IRS rules. If your separation decree is not final by this date, but you are living separate for six months or more during the tax year, you may file as Head of Household. This is allowed when you are supporting a child.
Requirements to File as Head of Household
All of the following must be true for you to file as Head of Household during a legal separation:
• Your home was the primary residence for at least one child, stepchild or foster child for more than six months.
• You can claim dependent exemption for the child, stepchild or foster child.
• You were financially responsible for more than 50% of the cost to maintain your home. This must have occurred during the tax year in question and cover rent or mortgage, taxes, insurance utilities and food.
Your spouse must file as Married, Filing Separately if you choose the HOH filing status.