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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How Do I Obtain A Legal Separation? Video

Straight talk with David Badanes, Esq. of Badanes Law Office – a top rated divorce attorney on Long Island, NY.

Today’s Straight Talk: How do I obtain a legal separation?

If you are thinking of a legal separation vs a divorce, the procedure is very similar. We can go through all the procedures that have to go through a separation. It can be less expensive and typically would go for a separation if you want to stay in your spouse’s medical insurance plan.

There are other reasons why you may want to get separated as well. We would go through all the information you need and all the issues from A to Z to get you separated vs divorce. And you can remain separated for as long as you want. There is no time frame that you can have to end the separation. It’s completely up to you.

How A Legal Separation Agreement Can Be Used As A Basis For Your Divorce

sepMany couples decide they first prefer a legal separation instead of a divorce. In those situations, it is important to have an attorney draft a Legal Separation Agreement which will detail the terms and conditions of your separation. If you do not have a legal separation agreement, then although you may consider yourself “separated”, as far as the Courts are concerned, you are not “legally separated.”

A legal separation agreement will provide you protection and security. If you have children, it should contain child custody and child support provisions. The agreement should detail how your assets are divided and how your debts are paid. If you have retirement funds, pensions or other deferred assets, the agreement should also cover how these assets are distributed. The separation agreement can also have terms for spousal support, which is similar to alimony (spousal maintenance), where spousal support is for support while you are separated and not married. There are many other issues the separation agreement will address. Finally, you can also put in provisions on when a spouse can file for divorce (with certain restrictions).

It is important that an attorney draft the legal separation agreement, so that it is valid and enforceable by the courts.

Once you decide to get divorced, the legal separation agreement will become the backbone of the final divorce agreement. For the most part, you should not need a new agreement to be drafted, as the legal separation agreement can serve that purpose. However, your attorney will still need to file certain other documents that are specifically for your divorce.

David Badanes and the Badanes Law Office have drafted numerous separation agreements. If you are seeking a legal separation or to convert your separation into a divorce, then call the Badanes Law Office today. The Badanes Law Office has offices in Northport and Garden City with satellite offices in Brooklyn and Manhattan. Contact David Badanes and the Badanes Law Office at 631-239-1702, email at