Should You Seek a Separation — or a Divorce?
You are probably spinning right now . . . asking yourself, or even beginning to ask others, how do you do it? What is the best way out of your marriage? To better understand the finality or possible nuances between choosing a separation or a divorce, SAS interviewed NYC Matrimonial Attorney Leigh Baseheart Kahn of Schwartz Sladkus Reich Greenberg Atlas LLP.
SAS: Leigh, many women facing issues in their relationship, wonder if they should pursue separation or divorce. What do you tell your clients? Is there a benefit to separating first?
Leigh Baseheart Kahn: I get this question a lot. There tends to be a good deal of confusion as to what is meant by “separation”. There is a distinction between a legal separation and a divorce. However, there is also a distinction between a legal separation and entering into a written separation agreement, which is important for women to understand. Many laypeople speak about a legal separation and a written separation agreement as if they are the same thing. They are not.
A legal separation occurs when a spouse files a legal action in court seeking a judicial declaration that the spouses are legally separated. Such an action does not terminate the marriage, and does not result in a division of the parties’ property. An action for divorce accomplishes both of those things.
If a client asks my advice about seeking a legal separation, what I generally recommend is that if you know that you want to end the marriage, it does not make sense to simply file an action seeking a legal separation.
A legal separation is also different from a situation in which the spouses enter into a duly executed* written separation agreement. There is no legal action that needs to be filed in order for spouses to enter into a written separation agreement. It can be done completely outside of the context of court action. A written separation agreement can (and generally does) address, and resolve, all issues arising out of the marriage—custody and child support (if there are children), spousal support, division of property, payment of professional fees, and so forth. The one thing that a written separation agreement does not do is to terminate the marriage itself. Court action is required to accomplish that goal.
In the past, prior to the passage of no-fault divorce legislation in New York in 2010, entering into a written separation agreement, and then waiting for a period of a year prior to filing a divorce action, was the only basis for obtaining a divorce in New York State without claiming fault grounds (such as cruelty, adultery, or abandonment). Now, it is not necessary to first enter into a written separation agreement in order to obtain a divorce on no-fault grounds.
If you are thinking about spending time apart, be prepared and consider reading, “The Emotional Stages of Your Separation.”
That being said, various couples may have reasons why they do not yet want to end their marriage, but still want to resolve all of the other issues arising out of their marriage so that there is a clear understanding and agreement as to their respective rights, entitlements, and obligations. Entering into a written separation agreement accomplishes that goal.
SAS: I am glad I asked you to write these answers down after we talk. It’s hard to take in, just hearing these details. I know if I were considering divorce or just trying to get away, I would have to read and reread the differences between terms . . .What is the difference between the date of separation and the date of the commencement of the divorce action, for example?
LBK: The date of separation is the date of the physical separation, when one side moves out. What really matters more, in a legal sense, is the date of commencement of the divorce action. It’s important to understand that when a divorce occurs, it is about more than simply terminating the spouses’ marital status. It is also about the division of property that has accumulated during the marriage. In general terms, property accumulated by the parties from the date of the marriage until the spouses enter into a written separation agreement or one spouse starts an action for divorce (except for inheritance, gifts to one party, and certain other limited exceptions) is marital property, subject to division in the event of a divorce.
For example if a couple physically separates and there is no written agreement in place, executed with the formalities required by law, which fixes the date of that physical separation as the cut-off date for the accumulation of marital property, any money made (and any assets acquired with money made) between the date of the physical separation and the date on which one party or the other starts an action for divorce (or the date on which the parties enter into a written separation agreement) would be technically considered marital property subject to potential division between the spouses. However, since they were physically separated and not contributing to the happiness or wellbeing of each other—or, more importantly, to the ability of the other to continue to create marital property by, for example, caring for the house to permit the other to spend more time on work, providing advice or insight, or engaging in business-related entertaining—the manner in which these post-physical separation earnings is divided is usually considered differently, not necessarily the same as it was when they were living together.
SAS: Since we’re talking about money . . . let’s say you want a divorce, what’s a good strategy if you are the breadwinner? Or if you are the Stay-at-Home-Mom?
LBK: If I am representing the moneyed spouse, as a strategy to protect his or her interests, I would advise filing an action for divorce to stop the marital accumulation of property — so that his or her spouse cannot make a claim to it. If I am representing the non-moneyed spouse, while he or she may want to physically separate, I may not want to recommend filing a divorce action in the hope of permitting my client to potentially gain some portion of the earnings still being accumulated.
The ultimate decision as to whether or not to file is, of course, up to the client. Some people make the decisions on a financial basis and some don’t. If a spouse simply isn’t emotionally ready to take that step, that needs to be respected. My job is simply to ensure that he or she understands the consequences of the decision being made.
SAS: Do you have a lot of women coming into your office and asking about separation as a step toward divorce?
LBK: A lot of people ask about a physical separation, and the distinction between simply physically separating and taking legal steps toward a separation or a divorce. There is nothing from a legal standpoint that prevents people from physically separating at any point, whether simply for a trial period or more permanently.
What I advise my clients, however, is that while a physical separation does not have immediate legal effect on the marriage itself, there are consequences which could flow from a physical separation which need to be considered in advance.
For example, if a spouse wants to leave and there are children involved, I would not advise moving out before addressing how both parents will have access to the children. Moving out without an access schedule in place can make it hard to establish an access schedule later. Once you move out, you might have to fight every time to see your child, particularly if bad feelings are running high.
If you have children, I recommend having a written access schedule in place prior to a move from the marital residence so that this is not a fight which must be had later.
There is also the risk, if custody is likely to be a contested issue in a particular case, that the parent who moves out could be deemed to have conceded that the children are better off living primarily with the spouse who remains in the marital residence with them. However, most courts understand, particularly if there is tension or outright hostility in the marital residence with both spouses remaining, that it is actually to the children’s benefit for two separate households to be established.
SAS: It sounds like if a woman is thinking of moving out — with or without her children — it’s very important she protect herself by seeking legal counsel in advance. This is to review the particulars of her case and circumstances, and the laws in her state.
LBK: This is certainly true. In addition to the above concerns where children are involved, there may also be concerns regarding financial issues. For example, if one spouse is very unhappy that the physical separation is taking place, or there is significant anger or hostility flowing from the decision—will it impact the financial status quo? Is there a concern that there may be a change in the manner in which financial support is provided to a dependent spouse? The logistics of financially managing two separate households may be somewhat complicated even where the split is entirely friendly. There may also be concerns about leaving financial records, or even certain valuable assets, in the marital home if one is the spouse moving out.
I would therefore recommend that a woman considering a physical separation seek advice in order to address these or any other concerns, or simply to educate herself on what rights (or obligations) she may have under these circumstances. This is especially important if there is the possibility that a divorce will actually occur.
SAS: Just out of curiosity, do both spouses have to agree to be separated?
LBK: For a physical separation, no. One spouse can simply decide that he or she wants to move out, and do so. There is no need to reach an agreement or obtain court permission. To be clear, however, this does not mean that the moving spouse, by leaving the marital residence, also sheds all of the responsibilities that flow from the marital relationship. Those responsibilities exist until the marriage is terminated (at which point they are replaced by whatever rights and responsibilities are embodied in any agreement reached by the parties, or, if the matter gets decided in court, by the terms of the judgment of divorce). In terms of a written separation agreement, yes, the parties both have to agree upon the terms set forth in the agreement.
SAS: Why do you think people are still asking about legal separation today?
LBK:My experience is, if people come for consultations to my office they might talk about separation. If they retain us, though, it’s for divorce, particularly when I explain what cannot be accomplished through a legal separation. I think that perhaps coming in and asking about a divorce may seem so final, jarring, and emotionally wrought for people that it is easier to seek advice about a lesser step in the first instance.
SAS: I suspect we at SAS hear more questions about separation than you do, because often our clients come to us for advice and divorce coaching before meeting a lawyer. They are in that contemplative and often very emotional stage. They are looking for ways out, to problem solve, for relief. Divorce sounds so scary.
LBK: Yes, by the time they come to me in my office, while it is still an emotional decision for many, it has also become an intellectual and practical one they’ve come to terms with — or one they have been forced to accept.
SAS: What words of support do you offer women who are facing the fact they must divorce?
LBK: It is often difficult taking that first step, and the process can seem overwhelming at first.
After doing this for over nineteen years now, however, I have seen many clients who have come into their own as their matters progressed, whether it is by starting to stand up for themselves and become more assertive, taking charge of their own financial lives, or simply realizing that they are entitled to find happiness after a difficult marriage.
While divorce is not easy, I have found that as they move through it, many clients realize that they are looking forward to “what comes next” and to moving on with their lives, and that is often invaluable.
SAS: Many thanks, Leigh, for taking the time to further our understanding about the differences between separation and divorce.
Leigh Baseheart Kahn is a partner at the firm of Schwartz Sladkus Reich Greenberg Atlas LLP. In addition to bringing extensive experience to the negotiation and litigation through trial of contested matrimonial cases, the firm provides representation and counseling to clients seeking marital settlement and separation agreements, as well as prenuptial and post-nuptial agreements. The firm assists clients with issues of child custody and visitation, equitable distribution of property, valuation of businesses and professional practices, spousal maintenance and alimony, child support, paternity and a myriad of other matters arising out of marital and cohabitation relationships. They also represent individuals who wish to utilize alternative dispute resolution mechanisms, such as mediation, arbitration and collaborative law.
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Please understand that marital law varies from state to state in the United States. So, as with all aspects of your situation, it’s important to discuss your circumstances with an attorney who specializes in marital law in your specific state.
*Duly executed means that all of the necessary legal requirements (such as signing, witnesses, notarization, notice published in a paper, service on required parties, etc.) have been fulfilled. The document is valid, enforceable, and legal.