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.

Denial of Visitation

denial of visitationOver the past few months I have been frequently asked if a spouse can deny visitation to their divorced partner. In most cases the answer will be no. New York Courts have taken the stance that visitation is in a child’s best interest and that children can benefit immensely if they are guided and nurtured by both of their parents. Typically, the non-custodial parent has the right to significant and reasonable access to their child. What exactly does this mean? In the event that the parents live close to one another, the non-custodial parent should have visitation each week and a part of the child’s summer vacation. Currently there is no clear-cut rule as to how much visitation is significant and reasonable.

Despite what was previously mentioned, under certain circumstances a parent can receive the denial of visitation. Having said that, the parent seeking to deny visitation has to prove that the visitation is detrimental to the welfare of the child, before the court will order the denial of visitation. The court will always take into account the child’s best interests, not the best interests of the parents, as is the case with almost every child custody battle. The court will not entertain a fight between parents that turns into a visitation battle, saving a parent denied visitation without proper approval from the court.

When will the court deny visitation? The denial of visitation may be approved if the behavior of the parents genuine worries about the safety of the child. For instance, if there is strong evidence of neglect, abuse, or mental illness of the parent, the court may deny visitation due to the welfare of the child. However, the court will always look for a less drastic option before deny a parent of visitation rights. For example, the court may order that the visits be supervised. Monitored visits can be sufficient enough to alleviate any worries by the custodial parents and the court.

denial of visitation child custody, divorce attorneyIn the case that you have been denied visitation or there are substantial changes in circumstances, your initial divorce decree isn’t always the final word. Depending on the circumstances, you could always request the court to adjust the visitation agreement, or in must circumstances, implement the visitation rights which you have already agreed upon.  The courts can look at the change in conditions, or in the case of an enforcement proceeding, the reasons why a visitation was withheld and prepare a ruling, once again, determined by the welfare of the child.

LEARNING POINT: If you decide on a separation agreement, obtain the services of a legal professional to help guide and preserve your rights pertaining to visitation.  Visitation is more than one or two weekends a month and a few days during the week.  Who gets the child on their birthday?  What about winter recess?  How many weeks during the summer does the noncustodial parent get custody?  Can I take my child out of the country for summer break?  It is easier to work out an agreement with counsel on your side, than going at it alone and requesting that the court modify the agreement you have in place.