Legal Separation

At the completion of the divorce mediation process, Long Island 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”).

“No Fault” divorce

Under New York State’s “no fault” divorce law, couples no longer have to blame the other to have a reason to get divorced.  Now, one spouse can sign an affidavit stating that the marriage has been “irretrievably broken” for a period of at least six (6) months.  Because of this new law, couples no longer have to wait one year following the signing of the separation agreement to file for divorce.  This can pose a problem if one spouse needs to remain on the other spouse’s health insurance plan for at least a year.  To make sure that the spouse needing health insurance is covered for at least the year, we put into our agreements the stipulation that if the other spouse files for divorce before the year is up, that spouse will cover the costs of the other spouse’s health insurance for the balance of the year, or more, if both parties agree.

Whether you wait a year after the separation agreement is filed with the County Clerk’s Office or you want to divorce sooner, it doesn’t mean that the divorce is final. You will need to file a separate set of papers to obtain an uncontested divorce.

Remember that physically living apart for six (6) months 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.

We look forward to answering any of your questions confidentially. Please call us at 516-749-5017 or e-mail us at: info@nydivorcemediate.com.