NYC Legal Separation Lawyers

Posted By Adam Denton, On July 15, 2016

Unsure About Separation?

During a period of separation prior to your divorce, or during the process of your divorce, you need to know that both your custody rights, and your property rights may be affected. Keep in mind that, if you and your spouse have been living apart from one another for any length of time, you may need to protect yourself–and your property–against actions that may be taken against you.

Not Interested In Going All The Way To Divorce?

If you’re not interested in having your marriage dissolved completely, then a legal separation is a great alternative to a divorce. It may surprise you that legal separation offers many of the same benefits as divorce:

  • Resolution of alimony
  • Division of assets and property
  • Deciding responsibility of loans and other liabilities

There are some very key differences between a divorce and a legal separation that distinguish the latter as being a great option for couples undergoing financial strain while dissolving their marriage. When legally separated, each party may:

  • Continue to file taxes jointly
  • Remain eligible for social security benefits under their spouse’s name
  • Receive coverage under their spouse’s health insurance

One of the most difficult, and complex, processes of divorce or separation is the division of property between the two parties, and things can get complicated quickly. For instance, in community property states, you and your spouse are able to designate certain assets as being “community property” owned by both of you. In common law states, whoever has their name on the deed or the registration is the owner of the asset in question. Remember to keep your best interests in mind when researching your case.

Want To Live Separately Indefinitely?

Once again, note your state laws when it comes to legal separation. There are four different kinds of legal separation:

  • Trial separation, which is when a couple decides to live apart in order to make the decision of whether or not to divorce. This type of separation is usually not legally recognized, and anything accrued between the couple during this time will be recognized as joint property.
  • Living apart, which is similar to a trial separation except that the couple has made the decision to live separately. Property acquired by either spouse during this period may be determined as separate property by the court, or it may not be ruled as such. State laws do apply when it comes to this kind of separation and property.
  • Permanent separation, which is slightly more convenient than trial separation and living apart, as anything acquired over the course of a permanent separation is considered separate property by most states.
  • Legal separation, in which the spouses are living apart from each other as in other forms of separation, but a court has ruled on how certain responsibilities–such as childcare, and maintenance of the marital home–will be divided.

Sound Complicated?

If any of this seems overwhelming at all, then know that you aren’t alone. The best advice that any legal professional could ever give one of his or her clients is that you should always keep your best interests in mind. Should you have any doubts that you will not be able to represent yourself well in your legal separation or divorce case, then know that it is imperative for you to contact a good attorney.

The state of New York allows individuals some options to change their status after a marriage that doesn’t necessarily have to end in a divorce. Legal separation, when spouses chose to end their cohabitation, differs from common divorces in a few way. The main difference is in their marriage status; under legal separation the individual parties are considered to be no longer together but remain legally married.

Entering into a separation agreement means either spouse must agree to a contract that stipulates their respective obligations in terms of spousal support, individual rights to property, and their rights to visitation and child custody. These are legally binding terms spouses agree upon, and they may be subjected to legal recourse should they fail to meet their obligations. This is something that could complicate divorce proceedings should a spouse(s) decide to seek a traditional divorce in the future.

It takes attorneys to draft this contract in a manner that satisfies all parties involved. This could include minor agreements, such as the living arrangements of wither spouse, the specific time arrangements for child visitation and the exact distribution of property and any money that could easily be claimed by both spouses. Once it’s agreed upon, the separation agreement is filed with the specific clerk in the New York County where the couple resides. After a year of legal separation, this case is up for review, giving the spouses an opportunity for reconciliation or petition for a no-fault divorce.

In order to enter into this legal separation, both parties must be in agreement that this is the course they wish to take their marriage before the drafting of any legal documents can begin and it must be an agreement that’s officially notarized. At that point it is up to the couple to decide what their status as legally married will be moving forward.

Though legal separation can be done amicably and the result of a decision spouses come to on their own, it’s not the only cause for a potential end to a marriage.

  • Qualifications for Separation?

In the state of New York, either spouse can seek legal separation from their partner in the event of adultery, neglect, cruel treatment or abandonment. In the case of wives, they can seek separation should their spouse fail to support them.

In the event of heated disputes or case of outright domestic violence, whether a single incident or a repeated situation in the home, and in the event of false imprisonment in excess of three days, a spouse may file a formal criminal complaint that can result in a summons for the other. In this scenario, a Judgment of Separation could be brought before the Supreme Court of the State of New York to determine which party is at fault and whether the status of a marriage meets the threshold for divorce.

Depending on their findings, a judgment may not grant separation, leaving the door open to petition the court to hasten its proceedings. This can lead a case to move faster than expected, lessening the year-long wait period between separation and divorce. Regardless of the court’s decision, spouses must file for divorce; unlike other states, in New York a year of separation does not automatically grant a divorce.

  • Residency While Separated

If filing for legal separation in New York, both spouses must have been married in and reside within the state for the duration of year in order to be applicable for divorce in thee year that follows. In the event that only one spouse resides in the state, the length of time between legal separation and divorce is extended to two years.

However, there is no time constraint placed on a couple to divorce within the state. Once a marriage within the state of New York is finalized, the opportunity for legal separation is a viable option from that point forward provided they meet the threshold as stipulated in the Domestic Relations Law in the Consolidated Laws in New York.

  • How to Get Started

In order to file a formal complaint and start the process of legal separation, you’d need to contact a legal team like the attorneys at Raiser & Kenniff to help you navigate the legal waters necessary to deliver a summons to your spouse. It’s only from that point on that separation can move forward in the court.