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Those who want to live separately but do not want to divorce can choose to file for legal separation. Filing for a legal separation is a perfect option for those spouses who have not yet decided to divorce. They can choose to live apart for a certain period as they contemplate whether to file for divorce or not.
The Basics of Legal Separation
The New York laws allow married people who decide to live apart to enter into a separation agreement. This is a written agreement that allows both parties to live separately from each other, split up their assets and determine child custody and support while still remaining married. A legal separation is a perfect alternative to filing for a divorce. The partners are still legally married and are not able to remarry.
Benefits of Legal Separation
Legal separation has many advantages. One of the greatest benefits include the ability to deduct alimony. According to New York laws, spousal support can only be deducted if the parties involved are not from the same household and are legally separated. In short, the spouses must have a valid court document in order for the alimony payments to hold.
Another advantage of legal separation is the insurance benefits. All insurance companies in New York can only cover spouses if they are legally married. As soon as they finalize their divorce, the companies reserve the right to drop the names of the partner attached on the insurance coverage document. A legal separation agreement allows spouses to maintain their married status while living apart. This means that they are still legally married and have the right to be part of each other’s insurance coverage.
Living apart from each other without an official separation agreement can put you at risk. When you separate without an official document, you still remain legally responsible for your spouse’s debts and any legal issues in which he is involved in. An official legal separation agreement will address such issues. It will also provide both of you with an opportunity to determine how your current problems and relationship is affected by living apart. This can help decide whether to file for divorce or continue with the legal separation agreement.
Filing a Separation Agreement in Manhattan
The first thing you need to do is to discuss with each other and agree on the terms and conditions of the separation. You can then write a separation agreement and file it with the court to obtain an Order of Separation. The Order of Separation will ensure that both of you adhere to the terms and conditions of the agreement.
To become legally separated in Manhattan, one or both of you must be a resident of New York. You must also have resided in the state for at least one year as husband and wife.
What Not to Do During Legal Separation
It is easy to blame each other, get angry and fight when separating. Do not hold on to anger and resentment because it can derail the agreement process and slow things down. Avoid talking badly about your spouse in front of the children or with friends. Do not threaten your spouse or let other people decide for you what to do. You should also avoid making any financial commitments with your spouse before you sign the separation agreement.
Not all legal separations are the same in Manhattan. Not to mention, there are many complicated and exhausting steps you need to take to finally arrive at a favorable agreement. You will most likely require the services of a separation lawyer to take care of all the issues related to your separation. A legal lawyer will help you prepare the separation agreement and forward it to the court for review and issuance of the Order of Separation.
When drafting the separation agreement, the lawyer will ensure that the interests of the parties involved are well taken care of. He will ensure that all the information drafted is clear and concise. He will also ensure that the items indicated in the agreement do not violate any rules and regulations governing separation in Manhattan.
Once the separation agreement is drafted, the lawyer will review it to correct mistakes and address any issues you might have. He will then present the document to both of you for signing before delivering the original copy to the court.
Not every lawyer will effectively draft the separation document, file it with the court and take care of any potential legal issues that might arise. You need someone who has a lot of experience in family law. Consider a lawyer who mainly specializes in legal separation. Someone who majors in other areas such as employment, criminal defense or personal injury will not give your case adequate time and attention.
Apart from experience, you need a lawyer who has a good track record and reputation. The lawyer should provide you with a list of people he has helped to draft and file for legal separation. Consider someone who has a good name not only among his clients but also among his fellow law professionals. Above all, make sure the lawyer is able to listen to your needs and communicate with you effectively.
Are We Legally Separated if We’re Getting a Divorce?
If you and your spouse enters a legal separation, you are still married, unlike a divorce that ends the marriage. The court issues an order that mandates certain duties and rights of you and your spouse until the marriage ends. Technically, you are living apart during a legal separation. Most couples find this helpful while working through personal and financial issues that are affecting the marriage.
Legal Separation Proceedings
The court decides the terms of the legal separation, similar to what it does in divorce proceedings. Based on your union, the terms may include:
• Payment of separation maintenance – this may include child support and spousal support, but is called something different for legal purposes to distinguish it from a divorce. An attorney files a “motion pending litigation” document. What the court awards for the legal separation will not influence what the spouse receives in the divorce proceedings.
• Child visitation and custody
• Division of property – this is usually determined by your situation and the situation your spouse faces, and how this relates to the property in question.
There are also common forms of separation that may affect how property is divided during this time.
A trial separation refers to the time period that you and your spouse lives apart. During this time, both of you may decide whether you want to continue with the marriage or file for divorce. Essentially, a trial separation does not have a real legal effect.
Any debt or assets acquired during the trial separation is considered marital property. Even if you and your spouse decide to get a divorce, this does not change.
There are some circumstances that may lead you and your spouse to decide that living separately is the thing for the relationship. At this point, both of you have decided that continuing the marriage is not an option. However, there are issues within the marriage that are not wholly resolved.
Some states require married couples who want a no-fault divorce to live apart for a specific time before making an official filing. Keep in mind that living separately may affect how marital property is divided.
Depending on the state, any debt or property acquired during this type of separation is classified differently. Some states classify the property based on whether you or your spouse intends to end the marriage.
Other states consider debt and property attained while living apart separate from the marriage. Still, there are other states that consider everything acquired while you are legally married to be part of the union until official paperwork is filed with the court.
The decision to end the marriage can lead to a permanent separation, which does not have the same legal effect as a legal separation. Unlike a legal approval to live separately, a permanent separation grants full ownership and responsibility for debts and assets acquired during this time as belonging to the person who acquired the assets.
That is to say your spouse has no legal right to anything you acquire. Anything obtained after a permanent separation, but before the divorce is finalized, is usually considered necessities for the family. Things such as house payments and caring for the children are treated as joint debts.