Legal separation is not the same thing as divorce. It is used as a tool to help couples separate when they don’t want to get divorced or cannot yet end their marriage. It is different from a casual separation where couples take time apart to figure things out. In a legal separation, the terms of the separation are spelled out in a legal document, called the separation agreement.
Divorce is more permanent and can have longer-reaching consequences. Legal separation can often transition into divorce if desired.
Under New York law, legal separation shares many similarities with divorce. The terms in a legal separation agreement often address spousal maintenance (like alimony), the equitable distribution of marital property, child support, child custody, and arrangements for shared parenting.
However, legal separation is largely “reversible” in a way that divorce isn’t. If circumstances change and legally separated spouses want to continue their marriage in the standard fashion, that is an option.
Divorce, on the other hand, is effectively permanent. There is no “going back” to the original marriage. It’s true that two parties could fathomably decide to remarry each other after they divorce, but that would be treated as a second marriage (and is relatively uncommon).
In New York, grounds for a no-fault divorce include living apart for at least one year under the terms of a separation agreement. Notably, some couples go through legal separation in order to meet the requirement for a no-fault divorce in New York.
The most common way parties legally separate in New York is by working with legal professionals to draft a separation agreement that both people can accept.
A separation agreement is a formal legal document that works much like a divorce agreement. As mentioned, it sets the terms of the separation, including whether maintenance payments will be paid and how property may be split. It can also settle important issues like child custody. This agreement is filed with the court and goes into effect soon after.
While a legal separation can occur through the courts even if one spouse doesn’t want a separation or terms can’t be reached, this is fairly uncommon. Why? The process to do this is about as expensive and time-consuming as filing for a divorce, but it isn’t as permanent. If a relationship is so broken that the parties cannot reach a mutual separation agreement, the recommendation is generally that they just get a divorce.
A contested divorce occurs when two people want to get divorced but do not agree on all aspects of their separation. This procedure can be complex, but it’s fairly common that, at some point in the process, the two parties will settle to avoid going through the entire process and getting a court-ordered final judgment.
Very broadly, a contested divorce can be thought of as existing in three parts.
With a mediator's help, some contested divorces become uncontested divorces – meaning the mediator helps the couple make important decisions about their divorce settlement that help them avoid going to court.
There are a few reasons one might want to be legally separated.
Philosophical: Some of these can be philosophical. For example, some parties may not be able to end their marriage for religious reasons, yet they view their marriage as so broken that they can no longer tolerate living together. Even for non-religious reasons, some parties may be unwilling to end their marriage with such finality.
Legal requirements: Divorce has certain requirements that legal separation doesn’t. For example, couples who want a no-fault divorce in New York need to have been married for at least six months. What if you want to break up but haven’t been married for that long yet? Legal separation allows couples to separate earlier than the six-month mark. Then, once permitted, they can go through with divorce.
Health insurance: Another reason to remain legally married for some people is health insurance. Certain employee benefits may only be available if the parties remain married. Legal separation can allow those benefits to continue.
Practicalities: Sometimes, legal separation is a matter of practicality. The parties may benefit more in some areas of life (often financial) when married, but they don’t want to live together.
The marriage isn’t over: A common reason for separation is that, although a couple is struggling in their marriage, they’re not actually sure they want to divorce. Legal separation is a tool for couples who are having serious issues but aren’t ready to get divorced. Perhaps they want to become more independent and no longer live together, yet they believe their marriage could potentially be repaired with time and effort.
Divorce is a permanent way to end a marriage and one that allows the parties to get remarried to other people if they so desire. If a party is sure their marriage is truly over and they have no intention to try repairing it (or simply view it as irreparable), divorce is a logical option.
If the other party resists separation, divorce may be a more logical action to push through the court in order to achieve a split.
One option is not universally better than the other. The best choice depends on the needs and circumstances of the spouses. Legal separation is revocable and can be thought of as a less permanent form of splitting compared to divorce. Divorce ends a marriage completely and allows for remarriage to occur.
Legal separation is typically a fairly quick process if both people agree on most major issues and are willing to settle. A divorce settlement can also be reached at a similar speed if both parties wish to get divorced.
But, since divorce is a permanent end to a marriage, it is more likely for disagreements to occur on the terms of the split. Resistance may also be more likely, so divorce is sometimes associated with a longer time frame than separation.
Meanwhile, a contested divorce will take much longer than either of these non-contested forms of separation. Contested divorce is a lengthy legal process that may see significant debate and legal arguing between the parties.
Legal separation can be indefinite. However, being legally separated for a year or more makes it easier for either party to get a no-fault divorce in New York.
Under New York law, legally separated parties need to live apart. Failing to live apart could cause legal issues, as it would mean both parties haven’t fully complied with their agreement or court order.
Legal Separation. (February 2019). Association of the Bar of the City of New York.
Divorce. (June 2020). Association of the Bar of the City of New York.
Contested Divorce Flowchart. New York State Unified Court System.
LEGALease: Divorce and Separation. New York State Bar Association.
Residency and Grounds. New York State Unified Court System.
Filing for an Uncontested Divorce. New York State Unified Court System.
Separation Agreements. New York City Bar Legal Referral Service.
Melissa Schmitz is Senior Editor at Hello Divorce, and her greatest delight is to help make others’ lives easier – especially when they’re in the middle of a stressful life transition like divorce. After 15 years as a full-time school music teacher, she traded in her piano for a laptop and has been happily writing and editing content for the last decade. She earned her Bachelor of Psychology degree from Alma College and her teaching certificate from Michigan State University. She still plays and sings for fun at farmer’s markets, retirement homes, and the occasional bar with her local Michigan band.
