Separation Agreement vs. Divorce Agreement

By Michael DiFalco

Breakups are complicated — splitting up, divorcing, or separating can be one of the most traumatic human experiences.

Many people are hesitant to jump straight to divorce when a relationship is disintegrating due to the extensive psychological and financial ramifications of officially dissolving a marriage. It’s for this reason that some couples decide to try out a separation agreement as opposed to a divorce agreement. 

What is a separation agreement? 

Spouses who do not want to divorce yet (or at all) but want to live and operate as separate people no longer in a romantic couple have the option of signing a separation agreement. A separation agreement is a written document that both spouses willingly and knowingly enter into. 

A separation agreement resolves most or all of the issues in a marriage, but does not legally dissolve the marriage.

Why Some People Choose to Separate Rather than Divorce

There are many reasons a couple might choose to separate rather than divorce. Some families belong to certain religious traditions and prefer to simply live separately from their spouse rather than experience the stigma and potential ostracism of a formal divorce. 

Separation can also function as a way for families to buy time while figuring out custodial arrangements for children or to continue living together some or all of the time while legally separating their financial lives  — or just to settle all of the issues while both parties are on board while the parties continue to consider whether dissolving their marriage is the best option for them. 

Some people also choose to separate instead of divorce due to financial concerns. If a spouse is reliant on their partner’s employment-guaranteed healthcare, they might opt to separate so that the unemployed spouse maintains access to health care if it is available to a separated spouse. 

How do separation agreements differ from divorce agreements? 

A separation agreement, if carefully and thoughtfully constructed with full satisfaction from both spouses, is similar enough to a divorce agreement that the separation agreement might constitute the entirety of a final divorce agreement. 

The primary difference between a separation agreement or divorce agreement is that a divorce agreement is immediately filed with documents intended to legally terminate a marriage and permanently dissolves the legal relationship between spouses in the eyes of the law. A separation agreement addresses most or all of the legal issues in its provisions in a very similar way to a divorce agreement, but does not immediately result in a dissolution of the marital relationship. 

Obtaining a Legal Separation in New York

It is possible to procure a legal separation in the state of New York by a judgment of separation, which is different from a judgment of divorce. A judgment of separation is court-ordered and sets expectations and obligations for a family’s financial assets, child support payments, child custody and visitation rights, and other considerations. Sometimes it is critical to have a court order such as a judgment of separation in order to ensure easy enforcement options for child and spousal support payments.

In some cases, we can rely on a separation agreement to obtain a judgment of separation, which does not dissolve the marriage like a divorce does, but allows for the distribution of assets including retirement accounts just like we would in a divorce proceeding.

Seeking Legal Representation for a Separation or Divorce Agreement

Divorce is one of the most financially and emotionally damaging legal processes a person can go through. When children are involved, the stakes are even higher. 

The best thing that spouses hoping to obtain either a separation agreement or a divorce agreement can do is to find legal representation skilled in matrimonial law and family law as soon as possible to fully understand the spectrum of options they have available. 

If you’re hoping to formulate a divorce or separation agreement that protects your financial assets and custodial rights, contact Aiello & DiFalco in Garden City, NY. Our skilled, focused, and experienced team will guide you through your separation or divorce agreement with vigor and compassion.

About the Author
I am a partner at Aiello & DiFalco LLP, and my priority for my clients is to guide them through an arduous court case to provide them with the opportunity to write the next chapter in their life. I tailor my approach to each client’s priorities and positions, and to the extent that matters can be predicted, I will always provide a realistic perspective of how the law could be applied to the particular facts and circumstances of a case. Since I thrive on helping people and solving problems, I bring an optimistic and positive approach to practicing in a very difficult area of law. With more than a decade of experience handling hundreds of cases, I have the ability to get results on the issues my clients view as priorities. When cases or certain issues cannot be settled, I have a solid record of success at trials, hearings, and on appeals. Feel free to contact me for a free initial consultation, I am always available to help.