When a New York resident’s marriage is failing, there are likely many things running through his or her mind. If neither party can make it work, either one or both parties may decide to either become separated or divorced. What’s the difference between the two? In a divorce, the individuals’ marriage is ended, while in the latter, they remain married.

More specifically, a legal separation is a contract — known as a separation agreement — that is drawn up between spouses. In such an agreement, a couple agrees that they will live separately and apart, decide which party is responsible for paying which bills and with whom the children — if there are any involved — will live. Additionally, the couple determines whether child support should be paid, decides on visitation arrangements and establishes what will be done with marital property. 

New York family courts are not involved with separation agreements. It is not something for which one can simply apply. In fact, if the location of an individual’s spouse is unknown — or a spouse simply does not agree to it — a separation agreement cannot be created. Usually, a separation agreement is not prepared by the couple, as sometimes special wording is necessary if an individual wishes for it to form the basis of a divorce in the future. 

An attorney is often the individual consulted to help draft the agreement. Sometimes there may be complicating factors — such as a pension, debts or real estate, to name a few — about which individuals typically consult attorneys to glean both advice and assistance. As an agreement that is poorly worded may have serious, unintended repercussions for the individuals involved, a New York resident contemplating either divorce or the creation of a separation agreement typically enlists the help of an experienced divorce attorney. 

Source: nycourts.gov, “WHAT IS A LEGAL SEPARATIONBY AGREEMENT OF PARTIES?”, Feb. 25, 2016