Is a legal separation required prior to divorce?

Aug 5, 2020 | Divorce, Divorce & Family Law, Divorce Mediation

A relatively widespread assumption is that a legal separation is the first step in the divorce process. However, in New York State, it is no longer necessary or even common to be legally separated before being legally divorced.

A divorce is considered either uncontested or contested in New York State. In both cases, you must have “grounds,” or a legally acceptable reason, for the dissolution of the marriage.

Grounds For Divorce

Divorce Lawyers - Bates Family Law, Rochester NY

There are seven legally acceptable grounds for a divorce:

  1. Abandonment
  2. Cruel and inhuman treatment
  3. Adultery
  4. Confinement to prison
  5. Living pursuant to a separation agreement for one year
  6. Living pursuant to a judgment of separation for one year
  7. Irretrievable breakdown of the marriage for at least 6 months (often referred to as “no-fault” grounds)

A separation agreement is something both spouses enter into voluntarily. If this grounds is used, the initial separation agreement must be legal and notarized and you must be able to prove that you and your spouse have lived apart for more than one year.

A judgment of separation is something that can be entered by a judge when one spouse wants a legal separation and the other spouse does not agree.

Living pursuant to a separation agreement or judgment of separation for one year are the only situations that require that a legal separation must precede a divorce being granted. 

Pros And Cons To Legal Separation

There are both pros and cons to legal separation.

Pros include:

  • A legal separation will allow you to continue to benefit from your spouse’s health insurance. 
  • You will still be considered married during a legal separation for the purposes of receiving your spouse’s social security retirement benefits and filing taxes.
  • A legal separation agreement will force both spouses to live by certain terms during the separation, such as abiding by a custody schedule or dividing financial responsibilities, all of which can be enforced in court if one spouse does not follow the terms.
  • A legal separation can, for some couples, provide the time and space for marriage counseling and a final decision for moving forward with divorce.

Cons include:

  • The legal, financial, and logistical ties that remain to your spouse may present complications.
  • Both parties must agree to the terms set forth in a separation agreement, which can be difficult if you do not get along well with your spouse.

The pros and cons of a legal separation should be carefully considered with your attorney before making a decision about how to proceed.

Get Personalized Legal Advice

The attorneys at Bates Family Law can advise you on whether a legal separation is recommended. While in most cases it is not, it is important to understand your options and to hire an experienced attorney who will be able to counsel you on the best path forward to marital dissolution. Call Bates Family Law today at (585) 433-4661 to schedule your free consultation.

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“Alison represented our daughter from birth until the finalization of her adoption. She was the most knowledgeable, patient, and thorough attorney we could possibly have worked with. While navigating the Family Court system can be incredibly confusing and taxing, Alison took the time to explain every step, and advocated tirelessly for the best interests of our child.”

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When I first met Alison, I was a recently separated father experiencing parental alienation and was having limited access to my child despite my requests to the mother. Alison explained to me that what I was experiencing was not uncommon early on in the separation process and fought hard on my behalf to resolve the matter in a fair and equitable way. Alison was efficient, reliable, and provided clear communication throughout the entire process. I would highly recommend her representation in any family law or divorce proceedings.

– Cory G.

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