Legal Separation vs. Physical Separation

In New York, there is a huge difference between a Legal Separation and being Physically separated. 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.  In contrast, Physical Separation is when a married couple decides to live separately, in different residences.  Indeed, you could be Legally Separated and still live in the same residence.

When you are Legally Separated, your legal separation agreement will typically address the following issues: (i) Child Custody (if applicable); (ii) Child Support (if applicable); (iii) Asset division; (iv) Debt distribution; and (v) Alimony/Spousal support.  A Legal Separation agreement can be (and usually is) the basis for a Divorce.  However, some couples will remain Legally Separated for years, you could be legally separated for the rest of your life.

If you physically separate from your spouse, depending on many circumstances, it may not have any legal effect.  If, after a physical separation, someone files for a divorce, the Courts may not consider the dates of your physical separation in calculating the issues of custody, child support or spousal maintenance.

It is extremely important to know, that if you only physically separate, without a valid legal separation agreement, that any financial decisions you make may not be binding on the Court.  Before you physically separate, you should consult with an attorney to guide you on what you should do and what you should not do when it comes to custody and support.

As for a Legal Separation, you want to make sure that an experience attorney drafts the Legal Separation Agreement.  The Agreement has to satisfy many legal and technical requirement, otherwise it could be invalid.

What are some other differences between a Legal Separation and Physical Separation and what do they have in common:

• With both a Legal Separation and a Physical Separation? 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.
• Tax issues: If you are Physically Separated, as far as filing your tax return, you can still file a joint tax return as a “married couple”.  If you are Legally Separated, you usually would file separate tax returns.  You should consult with an accountant to determine what the exact tax differences are between Legal Separation and Physically Separation.
• Health Insurance: If you are legally separated, then you may be eligible to remain on your spouse’s health insurance plan.  However, you need to check with the insurance company to make sure that your Legal Separation does not affect your insurance eligibility. If you are physically separated, then since you are still married, you absolutely can remain on your spouse’s health insurance plan.

If you are considering a legal separation or becoming physically separated, you should contact David Badanes and the Badanes Law Office. The Badanes Law Office helps clients throughout Long Island.  Call David Badanes and the Badanes Law Office at 631-239-1702, email at david@dbnylaw.com or visit our web site: www.dbnylaw.com

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