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Which type of separation is right for you?

Divorce is not the only separation option for couples with marital issues. Whether it be for personal, financial or religious reasons, some couples may choose to separate instead of divorce.

If you and your spouse need separation and meet certain residency requirements, read on to learn more about your options in New York.

Separation without legal arrangements

Living apart from your spouse is often the first course of action to take before choosing legal separation or divorce. Married couples who live separately don’t need to distribute assets, arrange custody orders or take other legal action.

However, if you wish to remain separate from your spouse, you should consider securing financial assets, property and custody or visitation rights. This can be done without filing for a divorce.

Separation with custody, visitation and child support

If you and your spouse would like to live separately from one another, but have children together, you can file petitions in family court for custody, visitation and child support.

An attorney can help you determine how custody and visitation should be arranged, so that each parent retains legal rights to their children.

This plan does not account for the separation and distribution of the estate. If you have a prenuptial agreement, the conditions may not apply if you and your spouse are not divorced from one another.

Legal separation by written agreement

If you want to be both physically and legally separate from your spouse, you should create a written separation agreement.

Some of the important issues this agreement should cover include alimony, child support, custody and visitation arrangements, the management of bills and debt and how bank accounts will be controlled.

There is no limit for how long you and your spouse may remain separate under your written agreement.

These separation agreements often become merged with a divorce judgement if you and your spouse decide to divorce in the future.


If you want to be physically and legally separated from your spouse and also wish to be able to marry someone else, you should file for divorce.

You can choose to cite an “irretrievable breakdown of the marriage” as the reason for the divorce to keep both spouses blameless for the end of the marriage. Otherwise, grounds for at-fault divorce are abandonment for at least a year, cruel and inhumane treatment, three years or more of incarceration or adultery.

You may also cite “separation” as the reason for divorce if you and your spouse have lived separately for one year.

Contacting a family law attorney may help you determine which of these options will work best for your unique circumstance. A lawyer can also help you draft a separation agreement, devise a custody order and settle your estate.

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