Legal Separation vs. Divorce

I am often asked what is the difference between a Legal Separation and a Divorce. You will notice I use the term “Legal Separation”, this is because some people are physically separated but that is not the same as a Legal Separation. A Legal Separation is when a married couple enters into a written Legal Separation Agreement, which also satisfies the legal requirements to qualify as a valid separation agreement.

There are some similarities between a Legal Separation and a Divorce. For example, the issues of: (i) Child Custody (if applicable); (ii) Child Support (if applicable); (iii) Asset division; (iv) Debt distribution; and (v) Alimony/Spousal support; will all be resolved in either the Legal Separation or in the Divorce.

What are the differences between a Legal Separation and a Divorce? There are 4 main differences between a separation and a divorce, they are:

1. If you are legally separated, then you are still legally married. This means that although you can live with your new significant other, you cannot get re-married until you are divorced. Most of the time this is not an issue, as most people will live together and may not feel that it is necessary to get re-married.

2. Tax issues. When filing your tax return and in other tax areas, there are or could be several tax implications between being legally separated and being divorced. You should consult with an accountant to determine what the exact tax implications are.

3. Health Insurance: This is typically, the main reason why people choose legal separation versus a divorce. If you are legally separated, then you may be eligible to remain on your spouse’s health insurance plan. If you are divorced, then you most likely will not be eligible to remain on your spouse’s health insurance plan. Each health insurance plan has its own rules, so you need to check with your health insurance provider.

4. Right of Inheritance: In New York State, if you are married, then you are automatically entitled to approximately 33% of your spouse’s estate (if they die). As stated above, when you are legally separated, you are still married, and therefore, you would still be entitled to this automatic portion of your spouse’s estate. The moment you are divorced, this automatic entitlement ends.

If you are considering a legal separation or a divorce, David Badanes and the Badanes Law Office have represented numerous clients in separation or divorce proceedings. Our contact information is:  631-239-1702, email at david@dbnylaw.com or visit our web site: www.dbnylaw.com. The Badanes Law Office main office is in Northport, Suffolk County and has a satellite office in Uniondale, Nassau County. 

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