There is much confusion about what it means to have a separation from your spouse.
An informal separation simply means that you and your spouse are living apart. There is no legal document or court involved.
A legal separation can take two forms: the separation can be according to a binding, written Separation Agreement between you and your spouse, or the separation is in compliance with a judge’s determination that you are legally separated. The latter, called a judicial separation, is very rare.
Almost all legal separations are formalized in a binding written Separation Agreement. Except for dissolving the marriage, all issues are resolved, including custody, visitation, spousal support, child support, division of assets, medical insurance, life insurance, and all other financial issues between you and your spouse. There are also provisions in the Separation Agreement that state that you and your spouse have the legal right to live separate and apart from each other, and not to be disturbed by the other spouse, as if you were single and unmarried. However, you are not yet divorced, so you cannot marry another person. (If you do so, you are committing bigamy, which is a crime in the State of New York.)
A legal separation pursuant to a Judgment or Order of the court is extremely unusual today, now that we have no fault divorce. The rare exception is when “Spouse A” doesn’t want a divorce because of religious convictions (or other reasons). In that case, Spouse A may want to have a court determine that he/she is legally separated from Spouse B, because Spouse B is unwilling to enter into a Separation Agreement.
No fault divorce gives a person the legal right to obtain a divorce by signing an affidavit or sworn statement that says that the marriage has irretrievably broken down for at least six months. The other requirement is that all custody, visitation and financial issues between the spouses must also be resolved by agreement or court order, before a Judgment of Divorce from the court can be obtained.
If you want to make a settlement with your spouse, it is a good idea to explore mediation or collaborative law to obtain a Separation Agreement, and then proceed with obtaining an uncontested divorce when you and your spouse are ready to do that. If you cannot obtain the cooperation of your spouse to enter into a Separation Agreement and/or an uncontested divorce, then you may need to go to the trouble and expense of bringing court proceedings to obtain a divorce. To go to that trouble and expense for a stop gap measure like a judicial legal separation usually does not make economic sense.
© Arnold D. Cribari 2016
