The Key Differences Between Legal Separation and Divorce
Legal Status and Implications
Legal separation and divorce are fundamentally different in their legal statuses. Legal separation permits couples to live separately while remaining legally married. The couple can reconcile and revert to a standard marriage.
By contrast, divorce terminates the marriage completely. It allows both individuals to marry someone else if they choose. Divorce alters someone’s legal standing significantly, severing all marital ties recognized by the state.
Custody and Support Arrangements
Both separation and divorce involve child custody and support agreements. However, in a separation, these arrangements are easier to revisit or modify.
Divorce settlements are permanent. You can modify arrangements after a divorce, but the process typically involves returning to court to alter the divorce decree officially.
Property and Asset Distribution
In legal separation, couples often agree to divide property and assets as part of their separation agreement. However, since they remain legally married, some joint property rights continue to exist.
Divorce, on the other hand, necessitates a permanent division of all marital property according to equitable distribution laws in New York. Once the divorce is finalized, each party relinquishes any claim to the other’s property acquired post-divorce, enabling a clean financial break.
Deciding to Transition to Divorce
Transitioning from legal separation to divorce is a significant decision influenced by various factors.
Common reasons for making this transition include:
- A desire for closure
- The need to remarry
- Irreconcilable differences
Considerations for Transitioning
When making this transition, it is crucial to evaluate the impact on children. Divorce can bring more stability and clarify custody arrangements, but it also requires difficult emotional adjustments. Prioritize emotional well-being, and make sure your decision supports personal growth and mental health.
You must also consider the financial implications of a divorce. This process finalizes asset division, affecting long-term financial planning and support obligations.
Filing for Divorce in New York
The divorce process in New York begins with filing a petition for divorce, also known as a "Summons with Notice" or "Summons and Complaint."
You must also complete a form called the "Request for Judicial Intervention" (RJI) if certain contested issues arise. An "Affidavit of Service" is also necessary. This form confirms your spouse has been properly notified of the divorce action. Additional documents, such as financial disclosure forms, may be required to address asset distribution and support.
Submit the forms to the county clerk’s office and pay the applicable filing fees. The clerk will assign the case an index number, which is used to track the divorce's progress.
Work closely with your attorney to understand where to file, which documents you need, and the subsequent procedures.
Modifying the Separation Agreement
When making this transition, you may be able to adapt your existing separation agreement. Then, you can use this new arrangement as your final divorce agreement.
To make adjustments, review the existing agreement. You want to identify necessary changes for equitable asset distribution and fair custody arrangements. Both parties should consult their respective attorneys to propose modifications.
After agreeing on the necessary changes, file a motion with the court to update the separation agreement, detailing the revisions. You will then attend a court hearing where a judge evaluates the proposed changes for fairness and legal compliance. If accepted, the modified agreement can incorporate the new terms into the divorce decree.
Finalizing the Divorce
You may be able to create divorce agreements together using mediation. This process allows you to avoid court and work together toward mutually beneficial solutions.
If the divorce must go to court, both parties present their case, and the judge reviews all paperwork. If everything is in order, and both parties agree on the terms, the judge will issue a divorce decree. In a contentious divorce where parties cannot agree, the judge must make decisions for them.
The divorce decree officially ends the marriage and outlines the terms, including property division, custody arrangements, and support obligations. Post-divorce, you should update your legal documents, such as wills and insurance policies. Doing so will help reflect your new status.
Additionally, consider the emotional and practical aspects of transitioning to single life, such as managing finances independently. Also, seek support from professionals, family, and friends. Proactively addressing these concerns can help ensure a smoother post-divorce adjustment.
Friedman & Friedman PLLC, Attorneys at Law is here to help couples make a smooth transition from separation to divorce. To schedule time with our team, you can contact us online or call our office at (914) 873-4410.