At the completion of the mediation process, couples need to decide whether to get a legal separation or go for divorce right away.

There are advantages to living under the terms of a separation agreement. First, a spouse can remain covered under the other spouse’s health insurance. Once divorced, the uncovered spouse is entitled only to the other spouse’s COBRA benefits or the uncovered spouse must obtain their own health insurance. Another advantage is that the couple can continue filing joint tax returns. Once divorced, each person must file separately. It is a good idea to speak with your accountant to decide what is best for each you.

A “legal separation” is a legally enforceable contract, signed by the couple, that covers everything from the division of assets and debts acquired during the marriage; custody of the children; child support; a parenting plan; and maintenance (previously known as “alimony”). Once the Separation Agreement is filed with the County Clerk, the clock starts ticking and you have to wait at least one year before you can file for divorce. For example, you cannot change your mind 6 months after the agreement is signed and then try to obtain a divorce. You have to wait until the year is up before you can file for the divorce. Living under the separation agreement for a period of at least one year is the “ground” or reason you can get a divorce under New York State law.

When the year is up, it doesn’t mean that the divorce is final. It simply means that you have the option from that point forward to file for an uncontested divorce. The procedure for filing the divorce papers is detailed in Getting Divorced.

Remember that physically living apart for a year or more will not be recognized by the court as a legal separation. You need to have a written agreement. Once you have made the decision to separate, it is best to put things in writing so that the only obligations to each other are the ones spelled out in the agreement.