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Entering a marriage, you never think that it’s not going to work out. Until you realize that it’s not working. What are you supposed to do now? Should you get a separation or file for divorce?

What is a legal separation?

A legal separation is often used by couples who do not yet want to file for divorce but do not want to live together. Grounds for separation are:

  • Adultery
  • Abandonment
  • Imprisonment of a spouse for at least three years
  • Neglect or failure to provide support
  • Cruel treatment

When you decide to separate, a complaint for separation must be filed and a summons is sent to your spouse. Then, you both create a separation agreement. This contract is like one in a divorce, addressing spousal support, child custody, visitation and division of property. It also says that you will live separately and addresses your responsibilities going forward.

While a separation agreement must be voluntary, the Supreme Court of the State of New York can also create a Judgement of Separation. This does not always require both parties to agree to the separation agreement.

How is divorce different?

The biggest difference between legal separation and divorce is that in a divorce, you are no longer married, while in a separation you still technically are. You also cannot remarry if you are not divorced. Here are New York’s acceptable grounds for divorce:

  • 6 months of irreversable breakdown in the relationship
  • Cruel treatment in the last five years
  • Abandonment for at least a year
  • Imprisonment of a spouse for at least three years
  • Adultery with proof
  • A legal separation agreement and one year living apart
  • Judgment of separation and one year living apart

If you are considering a legal separation or a divorce, you should always talk with an attorney. They will help ensure that you are making the best decisions for your family.