Legal separation in New York does provide certain advantages over getting a divorce. For example, it is not quite as final as a divorce, so the couple can rekindle their relationship if they want to. In many cases, this allows a couple to recalibrate their relationship, enter into marriage therapy and work on themselves while living separately. At the same time, they can protect their legal interests. However, couples should also be aware of the disadvantages of a legal separation in New York before venturing toward one.
One of the prime disadvantages to a legal separation agreement is that a separation agreement standing alone can be more difficult to enforce than a divorce judgment. When enforcing a separation agreement, the party seeking to enforce it must usually bring a separate lawsuit showing that a breach has occurred. Waiting for a case of this nature to be resolved can often take months. The court can then only provide damages or order specific performance. Whereas in enforcing a divorce order, the court has more remedies, including finding contempt of court and ordering a fine, imprisonment, ordering a spouse to give up certain assets or making an income deduction order. With a separation agreement, the enforcing party must wait until after the breaching party breaches the court’s order before being able to employ these remedies.
Another disadvantage to legal separation is that certain legal rights remain intact, such as the right to inherit. A spouse who has not lived or been involved with another spouse for years may not want this spouse to inherit his or her possessions.