Do I Need to File for a Legal Separation Before Filing for a Divorce?

In New York State, you do not need to file for a legal separation before a divorce. Although, it is not necessary, some married couples want to first obtain a legal separation before filing for a divorce.

In general terms, the number of legal separations has significantly been reduced in the last few years. The main reason for that is that in the past, many couples chose a legal separation, instead of a divorce, so that they could remain on the other party’s health insurance plan. At least in New York, that reason is now somewhat diminished, as an individual can obtain very good health insurance that is inexpensive and comparable to what they would have had if they stayed married.

There are two ways to obtain a legal separation: (1) Enter into a legally binding legal separation agreement, which then must be entered into the County Clerk’s office; OR (2) get a Judgment of Legal Separation from a Court. The vast majority of legal separations are obtained by a legal separation agreement. It is important to note that just having an agreement is not sufficient, it must be filed with the County Clerk’s Office to be considered a legal separation agreement.

A legal separation does not dissolve the marriage. When a couple files for legal separation, they are still legally married. This is the main difference between a legal separation and a divorce. The other main differences are the effects on health insurance, taxes and potentially retirement assets.

Choosing between a divorce and a legal separation is a personal choice. Some couples want to first have a “trial separation” before they obtain a divorce. Other couples have religious reasons on why they don’t want a divorce. A few couples stay technically married for the children. There is no right or wrong as a legal separation agreement can typically take care of all the financial aspects that a divorce agreement would have.

David Badanes and the Badanes Law Office, P.C. David Badanes and the Badanes Law Office, P.C. have years of experience and can help you obtain a legal separation or a divorce.

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