Legal Separation vs. Divorce in New York


This article is part of our series about “Divorce in New York”. You can find the links to the other articles at the bottom of the page.

What is Legal Separation?

Put simply, legal separation is when a married couple decides to live apart and divide their assets while remaining married. This means coming up with a contract known as a legal separation agreement.

The written separation agreement is the key feature of a legal separation. Without it, when a married couple decides to live apart, they are merely undergoing an informal trial separation.

You may have also heard the term “legal separation date” in the context of the divorce process. Now, this might get a little confusing, so bear with us: your legal separation date doesn’t necessarily have anything to do with the legal separation process.

Rather, a legal separation date merely indicates when your marriage became broken down beyond repair. 

This date is important because it indicates when each spouse stops accruing marital property and marital debt (which can be divided by a court under New York’s doctrine of equitable distribution).

What’s Considered a Legal Separation in New York?

In New York, the legal separation process can be more complicated than simply coming up with an enforceable separation agreement, but it doesn’t have to be.

If you and your spouse are basically on good terms but prefer to lead separate lives, then you or an attorney can write an agreement covering issues like the division of marital assets and debts, child custody, child support, and spousal support (a.k.a. alimony or spousal maintenance).

A separation agreement gives rise to a legal separation because it is a legally enforceable contract, which is then filed with the county clerk. 

Any two individuals, including you and your spouse, can contract amongst yourselves without the help of an attorney. You will, however, have to meet the state residency requirement in order for your separation agreement to be accepted by the court.

Despite a divorce attorney not being required, some people prefer to seek out legal advice to make sure everything is on the up and up. It can sometimes help to have an expert in family law at your disposal.

If you want, you can get the ball rolling before you’re ready to tell your spouse, because the attorney-client relationship guarantees you confidentiality.

Alternatively, you may need to initiate an action for judicial separation if your spouse has wronged you in a legally recognized way and you want the opportunity to prove it in court. This process operates a lot like a contested divorce proceeding.

Judicial separation originally came about back when New York divorce law provided for only one available ground for divorce: adultery. It was designed to give otherwise wronged spouses a way to separate from their spouses without an actual divorce judgment.

Nowadays, it’s extremely rare that a couple chooses this route because there are several other recognized divorce grounds, including a New York no fault divorce option. This means that you can obtain a divorce decree with or without your marriage having a history of adultery.

How Does Legal Separation Differ From Divorce?

Now that you know the basics of legal separation, let’s get into legal separation vs divorce New York style.

The difference is surprisingly simple. While a legal separation is all about the separation agreement, the ultimate goal of a divorce action is obtaining a final judgment dissolving your marriage.

If you opt for legal separation, you and your separated spouse maintain your legal relationship with each other. If you go through divorce proceedings, then you are no longer legally joined, even if one spouse pays the other support or the two of you share custody.

How Long Does Legal Separation Last?

A legal separation can last as long as you and your spouse want it to. It ends when you either reconcile or undergo a divorce, which is obviously a very personal matter for your own best judgment.

If you want to stay separated but the deal you and your spouse worked out no longer makes sense, you can also alter and refile your separation agreement down the line.


Why would you get a legal separation instead of a divorce?

There are a lot of reasons why a couple might choose legal separation over divorce, many of the reasons being deeply personal. For instance, you and your spouse might choose to remain married if your religion forbids divorce, or if you’re not 100% sure you won’t reconcile.

The most common reasons, however, tend to be financial. For instance, when a couple remains married, they also remain eligible for health insurance through each other’s work.

It’s also possible that a couple decides they want to formally split, but it’s just not a good time to fill out all of those New York divorce papers. If you know anything about how to file for divorce in New York, then you know that there’s more to it than just coming up with a divorce agreement.

Now, what legal separation won’t do for you is bypass required delays, because there is no New York divorce law waiting period in the first place. 

You also won’t need to choose legal separation simply because your spouse doesn’t want to divorce you, because you can get a divorce in NY without your spouse’s signature.

One piece of good news: if you initially opted for legal separation but later decide to end your marriage, you’re eligible for what’s called a conversion divorce, which is the easiest uncontested divorce process out there.

In a conversion divorce, you recycle your separation agreement for use in ending your marriage. After all, why should you come up with a whole new custody arrangement just because you no longer need to be on your spouse’s health insurance?

How much does a legal separation cost in New York?

The filing fee when you submit a separation agreement to the county clerk is $210, but additional expenses may arise in the process of negotiating said separation agreement. 

Thus, the answer to this question is very similar to that of another question: how much does a divorce cost in New York? For instance, hiring a divorce lawyer is almost always more expensive than mediation.

If you’re interested in learning about the most economical divorce method on the market, click here: Online Divorce New York.

Can you date during a legal separation in New York?

So, above we briefly mentioned that adultery is a legally recognized ground for divorce in New York. Ordinarily, proving fault may impact the outcome of the divorce in the wronged spouse’s favor.

However, if you have undergone a formal legal separation (meaning you’ve filed your separation agreement and it was approved by the court), then your decision to date will no longer be considered adultery. So, the short answer to this question is yes!

You’ll want to keep in mind, however, that merely living separately is not enough for this change to occur. This is one situation in which you’ll definitely want to jump through those legal hoops in order to protect yourself.

How long is a legal separation valid in New York?

A legal separation is valid in New York for as long as you want it to be. It will no longer be valid after you either reconcile or divorce, although in the latter situation you might still choose to go by your preexisting separation agreement.


To continue learning about divorce in New York, see the following articles in the series:

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