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Wednesday, October 23, 2013

Informal, Long-term Marital Separations Can be Risky

It's one thing in a marriage to take some time apart, re-evaluate your priorities and determine whether this is a union worth saving. 

It's quite another to spend years in a virtual legal limbo, working toward neither divorce nor reconciliation and with no clearly outlined definition for the support or care of children, property use or division or the management of debts and investments. 

Our Brooklyn divorce lawyers know that this is the scenario in which many couples find themselves, and it often results in unpleasant surprises. it's unfortunate because there are ways to legally protect yourself, even if neither of you is quite ready - financially or emotionally - for a divorce. 

One of the best options is a legal separation. This is not something that is required of couples prior to a divorce. Rather, it's a way for couples to sort out some of the details of living in two separate domiciles, while still technically remaining married. 

In New York, legal separations, unlike divorces, are not something the court grants. There are no applications and it's not something for which agreements are formally approved. Rather, a separation, much like a prenuptial agreement or a marital agreement, is a contract between you and your spouse. Ideally, this contract will spell out who is going to be responsible for paying which bills, where the children are going to live, whether one spouse will pay the other child support, what the visitation schedule is going to look like, what's going to happen to shared marital property - and really any other aspect you want to include. 

It is highly advisable that you have an attorney counseling you through this process, helping you draw up the language of the agreement and informing you of any aspects you may have overlooked. If an agreement is poorly-worded, it can have unexpected and sometimes serious consequences for both parties, especially in complicated cases. 

So why have a separation agreement at all? While we generally espouse the many benefits of a clean break through an uncontested divorce, that's not always ideal. In some cases, considerations like military benefits or health care insurance comes into play. Ending the marriage could mean leaving one spouse at an extreme disadvantage. 

Other times, there are religious reasons. Couples don't want to be together anymore, but their faith won't allow them to legally divorce. A separation agreement can be a compromise. 

In other cases, couples are simply unsure whether this is what they truly want. Rushing into a divorce isn't appealing. They both want time to sort through not only their finances, but their emotions as well. A legal separation can provide that opportunity. 

Where we see bigger problems is when couples separate without a legal separation agreement. We're not talking about a few weeks in a hotel after a major fight. We're talking about years of simply living apart, with no formal agreement to define the terms of that space. There are a number of issues that can arise.

First of all, you are in a position of having zero control over the handling of marital assets. You can't control what your spouse is spending, saving, investing or earning - and worse, you may have no real knowledge of it either. Being in the dark about financial decisions that directly affect you is never a good idea. Plus, the fact that you no longer share a residence means your spouse may have ample opportunity to hide certain assets. 

Secondly, you could be seriously impacted if your spouse moves out-of-state - or worse, out of the country. New York divorce laws may not be applicable if your spouse has established residency elsewhere. Understand that a lot of states have passed severe restrictions on things like alimony, which could significantly impact what you walk away with if your spouse chooses to file for divorce in his or her new home state. 

Consider also the possibility that you might meet someone new. Some people might see this as a positive. However, starting a relationship while you're still legally married and not legally separated is generally frowned upon in divorce court. It's only been three years since York became the last state in the country to pass a no-fault divorce law, meaning you don't have to offer up a reason for the split. However, that doesn't  mean infidelity won't factor into the ultimate divorce agreement. 

It's understandable that many couples approach divorce with trepidation. Separations agreements allow you to take your time, while still protecting yourself. 

If you are contemplating a Brooklyn separation agreement, call our offices at (718) 864-2011.

Additional Resources:

Putting Off Divorce? Ten Ways Long-term Separations Can Do Women More Harm Than Good, Oct. 3, 2013, By Jeff Landers, Forbes.com

More Blog Entries:

Brooklyn Family Law Attorneys Discuss Divorcing Like Adults, Oct. 6, 2013, Brooklyn Legal Separation Agreement Lawyer Blog


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