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Is legal separation available in New York?

Many states have a formalized process in which a couple who wishes to remain legally married but live in separate households can obtain what is called a legal separation.

In a sense, New Yorkers call also obtain a legal separation, but the process is a bit different than in other states.

The key difference is that New York courts do not recognize requests to be legally separated as opposed to divorced and, accordingly, will not make orders regarding property division, custody and the like when all a couple wants to do is legally separate.

Instead, in addition to living apart, the parties must be able to come to terms and draft and sign what is called a separation agreement. Separation agreements have to be in writing and they have to address all issues one would typically address in a divorce, such as property division, child support, custody and visitation, alimony, and the like. Other restrictions on separation agreements, and when a couple may enter in to one, may also apply.

While family law and divorce courts will not legally separate a couple themselves except in the case of an actual divorce, they are more than willing to enforce a valid separation agreement. A couple who has signed such an agreement can consider themselves legally separated and may remain so for so long they are both willing.

Legal separations may not be available to everyone. When they are available, it is important for parties to remember that their marriage to their spouse is not over, and, thus, neither is free to remarry. Still, there can be several financial and emotional advantages to a legal separation, even for those who have no moral or religious objections to divorce.

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