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Here’s a great article by Todd Spodek, a top rated NYC Divorce Lawyer. If you have reached a problematic point in your marriage, but are uncertain about proceeding with divorce, you may wonder what options are available to you. One course you can consider taking in many states is a legal separation. You may wonder whether a legal separation is a good idea if you are unsure about divorce.
Reasons for Pursuing a Legal Separation
There are three general reasons why a couple might consider pursuing a legal separation as opposed to a divorce. One reason why people seek a legal separation as opposed to a divorce is based on their religious beliefs
A second reason why people elect a legal separation is because of some important consideration like maintaining insurance coverage. Finally, if a couple truly is uncertain about ending a marriage, but can not cohabitate effectively as husband and wife at this time, legal separation can be an advisable course.
Not All States Have Legal Separation Laws
Before you proceed too far down the road with the idea of pursuing a legal separation, you need to make certain that your state actually has a law permitting this type of proceeding. The best way to understand the laws in your state regarding legal separation is to schedule an initial consultation with a family law lawyer.
The Actual Impact of Legal Separation
At its essence, a legal separation does everything that can happen in a divorce case except actually ending the marriage. In a legal separation, court will enter orders dealing with the distribution of assets and debts as well as establishing child custody, parenting time or visitation, and child support.
There can be hearings before the court to address these issues if you and your spouse cannot reach agreements on these matters. You will have to prepare and file the same types of documents that are necessary for divorce cases.
When One Spouse Wants a Legal Separation and the Other Wants a Divorce
There are situations in which one spouse wants a legal separation and the other spouse desire to divorce. If a spouse files for divorce first, absent an agreement between the parties to convert the case to a legal separation proceeding, a court is highly unlike to entertain one spouse’s desire to proceed with a legal separation.
If a spouse files for legal separation initially, and the other party comes into court seeking a divorce, the court ultimately is likely to approve proceeding with a divorce. This is the case even in states in which irreconcilable differences are grounds for ending a marriage. If one party wants a legal separation because he or she feels a divorce is not inevitable, and the other party thinks divorce is the only alternative, a court is likely to conclude that the parties have irreconcilable differences even on the viability of the marriage itself.
Negotiate a Legal Settlement Agreement
The ideal situation in a legal separation case is when the spouses are able to negotiate a separation agreement between them. Ideally, the parties are able to reach decisions on everything from property and debt to resolving issues associated with the children.
If an agreement can be reached, the parties then present it to the court. Even in a legal separation case, a court must approve the final agreement reached by the parties. When the court approves a legal separation, the judge makes that agreement the order of the court in the case.
The only situations in which a court is unlikely to approve an agreed-to separation agreement is if its terms somehow violates the law or if one spouse coerced or exerted some other type of overreach in getting the other spouse to agree to that agreement.
Hire an Attorney
Legal separation is a complicated legal matter. In the scheme of things, it really is as complicated as a divorce case. The only step that doesn’t occur in a legal separation case is the formal, legal termination of the marriage itself.
A family law attorney will explain your legal options, including the availability of legal separation. Click to read more. Legal counsel will also answer any questions that you may have. As a general rule, a family law attorney will not charge a fee for an initial consultation.