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What is the legal difference between separation and divorce?

Some couples are unsure if divorce is the right answer to their problems and want to legally separate to experience what it would be like to live apart before making a final decision. Other couples are sure they want a divorce, but would like a legal separation first because of financial or other benefits of a legal separation. Some couples also would like to live apart because religious or other reasons prevent them from getting a divorce.

What are the main differences between separation and divorce?

The differences between a legal separation and divorce are that you retain some of the legal benefits of marriage when you are separated but not divorced. With a legal separation, the following benefits still apply to you but do not in a divorce:

  • You can stay on your spouse's or family's health insurance plan
  • You can file taxes jointly, saving money on taxes
  • You are still considered married, so you can accrue time toward the 10-year marriage requirement to collect spousal social security benefits
  • You can retain some rights of inheritance
  • Legal separation is not final, so you do not have to proceed to a divorce after separation

What are the similarities between separation and divorce?

What is similar between a legal separation and divorce is that in a legal separation, you still have to decide the same basic legal issues as if you were getting a divorce, such as:

  • Who will live in the marital home and who will move out?
  • Who will have physical custody of the minor children and how will we co-parent or share time with our children?

How do you get a divorce after a separation?

Under New York family law, if you are legally separated for one year, this can count as a valid reason or grounds for divorce, if that's what you plan on doing after the separation. Since you already have a legal agreement on things like child custody, these agreements can be converted into a divorce and reduce cost and stress associated with disputes when it comes to decisions in a divorce.

An attorney experienced in the areas of legal separation and divorce can guide you through the process and help you understand the similarities and differences between the two choices. Every family's needs are different, so find a skilled attorney who has the experience to help you through this time and meet your family's goals.

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