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Separation

Divorce is a final termination of the marriage. However, legal separation is a legal procedure that allows the spouses to formalize the terms and conditions of their anticipated divorce and living separate and apart while remaining legally married.

A legal separation is first prepared as the parties contract/agreement and then filed with the court. It is granted in the form of a court order or decree and must be filed with the court to have legal effect and to be used later for a ‘divorce based on separation’ (one of the divorce grounds).

In cases where the parties have children, the legal separation makes child custody, visitation, and parenting arrangements, as well as setting up temporary and permanent child support.

A legal separation is like a wish list for what the parties want to have in case of divorce and for the temporary period of time they are living apart while still married.

The parties are free to agree on child support, custody, visitation, parenting, property division and alimony/spousal support ahead of time to avoid lengthy litigation in case they end up deciding to get divorced without going all the way through with dissolving their marriage. It gives both sides a cooling-off period and time to decide if they like living apart and want to stay that way or may choose to reconcile. Some couples obtain a legal separation as an alternative to a divorce, based on moral or religious objections to divorce.

If the parties decide to reconcile during the separation period, they can just resume cohabitation and do not have to do anything else.

In the event the parties decide to proceed with their divorce after a specific separation waiting period (in New York it is one year), the divorce just mirrors the separation agreement terms and becomes the judgment of the court.

Legal separation is an effective tool for those people who wish to have a trial run for moving out from their spouse, but are not yet ready to pull the plug on their legal marriage.

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