The legal separation cost in New York is typically about $1,500, which includes consultation, negotiation with the other party, contract drafting, and filing with the county clerk’s office.
Legal separation occurs when spouses wish to physically separate and live in separate roofs but seek to remain married. One may wonder why, in this day and age, spouses who wish to physically separate would like to remain married. However, there are a number of reasons for spouses to first take the option of legal separation prior to divorce.
Table of Contents
Why legal separation as opposed to just getting a divorce
First, legally separating spouses can still avail of the other spouse’s medical insurance. When one spouse is employed and the other isn’t, the employed spouse’s medical insurance usually covers the unemployed spouse. If they divorce, this insurance coverage terminates.
Second, spouses separate but remain married so that they can receive the social security benefits of their spouse. A divorced spouse can still receive benefits of his/her ex-spouse, even if the ex-spouse has remarried, for as long as the divorced spouse remains unmarried, if such marriage lasted 10 years or longer. For this reason, if the ex-spouse gets retirement benefits, the divorced spouse can get half of the ex-spouse’s full retirement age amount or disability benefit if the ex-spouse starts receiving benefits at his/her full retirement age, for as long as the divorced spouses were married for at least 10 years.
Third, spouses separate but remain married for religious reasons. Some religions prohibit divorces. A legal separation agreement allows spouses to divide their properties and finances and stipulate provisions for custody and other issues relating to their children without divorcing.
Fourth, prior to 2010, legal separation was used as a ground similar to no-fault divorce. In New York, no-fault divorce was only passed in 2010. Prior to 2010, spouses could divorce only by alleging and proving a ground of fault, such as cruel and inhuman treatment, adultery, and imprisonment. By requiring proof of fault, divorce was an expensive and lengthy legal process. Since divorce could be obtained after one year of being legally separated, spouses would execute a legal separation agreement, and after one year, file for divorce. This ground did not require proof of fault, and thus, was not lengthy and expensive for purposes of obtaining divorce.
The following is an example of a situation why people prefer legal separation over divorce. Husband and Wife have been married for 8 years. They got married when they were both 35 years old. They have two children, aged 7 and 5 years old. Husband is working for a law firm in New York, but Wife stayed home during their marriage to take care of the children since daycare costs were expensive. Wife, as Husband’s spouse, was covered under Husband’s medical insurance with his employer. After 8 years of marriage, Husband would like to divorce, but he did not want to leave Wife alone just like that, and would like Wife to still receive benefits as his previous wife. Husband and Wife are now 43 years old. Wife had been unemployed for the past 8 years. To cushion the effects of a divorce, Husband and Wife decide to get a separation agreement instead for at least 2 years more so that they could be considered married for 10 years for purposes of availing benefits. The separation agreement allows Husband and Wife to live separately from each other, yet consider themselves married for other purposes. During the separation agreement, Wife is still considered Husband’s legal spouse and is still covered by Husband’s medical insurance. The next 2 years of being legally separated can give Wife time to get used to being independent and to find a job. If they remain married for 10 years (with 2 years under the separation agreement), Wife can avail of Husband’s social security benefits when Husband retires. When Wife turns 65 years old, for as long Wife doesn’t remarry, she can receive 50% of Husband’s retirement benefit as an ex-spouse.
For some, legal separation is a way to cushion the financial effects of a divorce. Getting a legal separation agreement allows the non-employed spouse to obtain employment and fix their finances prior to divorce. The legal separation cost is also cheaper than the costs of divorce.
Issues addressed in a legal separation agreement
Some spouses decide to save on legal separation costs and draft the contract themselves. However, drafting a legal separation agreement does not only involve knowing the issues to be discussed but the legal rights of a spouse as it pertains to each issue. By knowing one’s legal rights, one can negotiate with confidence knowing what to leverage. For this reason, it’s always better to have separate attorneys when negotiating and drafting a legal separation agreement.
Issues discussed in a legal separation agreement are similar to the issues hashed in a divorce proceeding. These issues are child custody and visitation, child support, spousal support, separation of assets and debts, residences, and children’s additional expenses, to name a few. When discussing legal separation, it is important to be transparent with one’s financial assets. Otherwise, the legal separation agreement may be invalidated in the future due to fraud. In addition, reconciliation can set aside the legal separation agreement. An experienced lawyer can insert a reconciliation provision in order to supersede any common law consequence of reconciliation.
Legal separation as a requirement in conversion divorce
Once spouses have been legally separated for a year, they can file for conversion divorce to convert the legal separation agreement into a divorce. Prior to filing for divorce, it is important that the legal separation agreement has been filed with the county clerk. In case it has not been filed as soon as the separation agreement was executed, one can file it belatedly, as long as it is filed prior to filing for divorce.
The divorce decree will generally incorporate the separation agreement, but the judge may vary the terms of the legal separation agreement in issues relating to the child, such as child support costs, visitation, and custody. Because the child is not a party to the legal separation agreement, the child’s best interests could not have been considered, and thus, the judge can change these provisions in accordance with the child’s best interests. The judge can also modify the provisions of the legal separation agreement when it is inequitable or unconscionable or on grounds of fraud, coercion, or duress.
Although one is wary of legal separation costs, divorce costs are generally more expensive. Still, you need to equip yourself with a good attorney when negotiating legal separation because the effects of this agreement will be felt in the coming months and years. Although a separation might appear amicable, the spouses’ interests are still considered adverse. It is important to get the best deal during negotiations to ensure all the bases are covered, the martial assets are divided equitably, and the children are adequately provided for financially.
Should you need assistance in drafting a separation agreement, we, at the law offices of Albert Goodwin, are here for you. We have offices in New York, NY, Brooklyn, NY and Queens, NY. You can call us at 718-509-9774 or send us an email at [email protected].