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Are We Legally Separated If We’re Getting a Divorce?

If you and your spouse have decided that it is time for you to go your separate ways, you probably want to make sure that the entire legal process is handled properly. Then, you can each protect yourselves, and you can help avoid any delays or issues that could prevent you from moving on with your lives. Understanding what a legal separation is, why it’s important and how to file for one is an important first step to take when you’re preparing for a divorce.

What is the Difference Between a Separation and a Divorce?

First, you have to understand the difference between a separation and a divorce. A legal separation simply means that you and your spouse are separated and are no longer living together as a married couple. However, you are still technically married, no matter how long you have been legally separated, until you get a divorce.

divorce, on the other hand, is the dissolution of your marriage. When you get divorced, your marital union is terminated. Once your divorce is finalized, you are no longer considered husband and wife, and you can remarry if you choose to.

Are Legal Separations Automatic?

Some people think that once they are no longer living with their spouse that they are separated. Even though you and your spouse might be separated in a technical sense, you still aren’t separated in a legal sense if you haven’t filed for a legal separation. Luckily, the process doesn’t have to be difficult or time-consuming, and it’s something that a lawyer can help you with. Many people use the services of the same lawyer for their legal separation as they do for their divorce.

Why File for a Legal Separation?

Couples file for a legal separation for a number of different reasons. One main reason why couples file for a legal separation is because they are planning on getting divorced. However, some couples file for a legal separation for other reasons. For example, you and your spouse might be experiencing marital problems, and you may think that these problems can be better resolved if you live apart for a little while.

How to File for a Legal Separation

Simply moving out of the marital home and no longer living as a married couple is not enough to establish a legal separation with your spouse. Instead, you have to go through the process of filing for a legal separation.

For one thing, you and your spouse have to meet certain criteria in order to file for a legal separation. For example, if you are filing for a separation in New York, you have to be legally married and must be residents of New York. If you’re unsure of whether or not you and your spouse qualify to file for a legal separation, you can always consult an attorney who can talk to you about the specifics of your situation.

Before you can file for a separation, a separation agreement must be written up. It’s generally best to do this with the help of a knowledgeable divorce attorney. On the separation agreement, you must list certain things, such as the grounds for the separation. Some couples list that they are getting separated in anticipation of a “no-fault” divorce. If you were abandoned by your spouse, then this would be listed in your separation agreement. Your attorney can talk to you about the reason for your separation to help determine what to list on the separation agreement.

Of course, when you and your spouse are planning on living separately, there are certain decisions and arrangements that have to be made. If the two of you have children together, for example, you have to worry about arranging for child custody. Child support may be ordered, too. You will also have to determine who — if anyone — will continue to live in the marital home during and after the separation period.

Once your separation agreement has been completed, it can then be filed with the state courts.

If you’re preparing to go through a divorce, you may want to start with a legal separation. Filing for a legal separation can seem upsetting and confusing, but you can make this difficult process a whole lot easier by working with a good divorce attorney who is well-versed in New York’s laws and separation and divorce processes. Then, you will have someone who is knowledgeable on your side to help you through this trying time.

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