Separation Vs. Divorce

What is the difference between a legal separation and a divorce?  Which is better? Which should I pursue?  These are common questions recently posed over the last couple of weeks. Domestic Relations Law (“DRL”) Article 11 authorizes actions for judicial separation of the parties without dissolution of their marriages. Since the passage of “no fault” divorces, the use of legal separations has been on the decline.  Before New York allowed no fault divorces, a party could obtain a legal separation and after a year of abiding by the separation agreement and living separate and apart, could convert that separation agreement to a divorce. Today, legal separations may be a valuable tool for those whom divorce is not an option for religious or personal reasons.

DRL § 200 sets for the grounds for obtaining a legal separation; they are: (1) cruel and inhumane treatment which threatens the physical or mental well being of the person seeking the separation thus making it unsafe for them together; (2) abandonment; (3) neglect or refusal to provide support to spouse where the spouse is chargeable with such support under the provisions of DRL§32 or of §412 of the Family Court Act; (4) Adultery and (5) confinement for more than three consecutive years.

A separation does not dissolve the marriage and it does not nullify it but rather, the marital relationship remains intact and the parties continue to be bound as husband and wife.  Most importantly a judgment of separation does not serve as a cutoff date with regard to the classification of property as marital or non marital for purposes of equitable distribution.  So if you are granted the separation and start acquiring property, that property is subject to equitable distribution.  In the same vein, debts are marital property and if your spouse continues to acquire debt, that may be subject to equitable distribution as well.  Of course, as an equitable distribution state, there will be the analysis regarding the equitable split of this type of debt.

Because the marital relationship is intact, under the Estates, Powers and Trusts Law (“EPTL”) a husband or wife will be considered a surviving spouse despite the existence of a valid separation judgment, unless the agreement was granted against the spouse that passed away.  In other words, if you were the plaintiff in a separation action and it was granted, when your spouse passes away, you can still inherit. If you pass away, your spouse may not be able to inherit.  However, a judgment of separation does terminate a tenancy by the entirety and converts it to a tenancy in common.  Thus, if you pass away, the spouse does not get the entire property and your interest can be passed to someone else.

LEARNING POINT:  A legal separation is most useful for people who DO NOT intend to divorce.  It provides minimal safeguards.  If you are contemplating a legal separation vice a divorce, seek an attorney’s guidance as soon as possible.  The above article was a brief overview of the legal separation however, every case is different and an attorney will be best suited to guide you through this difficult process.

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