NEW YORK DIVORCE AND FAMILY LAW: A LENGTHY SEPARATION

I read an interesting article in the New York Times recently about couples who stay separated indefinitely instead of getting divorced. The authors calls such couples the Un-Divorced.

As a Divorce attorney in the State of New York, and the founder of the Law Offices of Helen M. Dukhan, Esq., LL.M., practicing solely family, matrimonial and divorce law, I typically do not hear about such couples, as most individuals retain my services so that they can get divorced as soon as possible. However, when couples who have been through a lengthy separation seek my services to finally get a divorce, they are, in my experience, typically worse off than if they would have been divorced upon separation. The article makes great sense as to why some couples may choose to forego getting a divorce and decide to just remain separated, but also mentions the dangers of doing so. After recapping the article, I will explain how a couple can protect themselves in case a lengthy separation does turn into a divorce.

The author of the article lists the following reasons that individuals are staying separated instead of getting divorced, the reasons being practical and financial, not familial:

a) Some couples believe that they are better off not bringing in lawyers and causing anger, they wish to maintain the status quo without causing any problems for each other or gossip depending on their social status.
b) Health Care: insurance costs are keeping some couples married as one spouse may not be able to afford health care and have illnesses requiring they stay covered by their spouse’s health insurance to obtain treatment.
c) Financial benefits: according to federal law a spouse qualifies for the other’s social security benefits if the couple has been married for a decade.
d) The Recession: real estate market is bad and at an all time low so couples chose not to sell their home and keep living together in the same house because they cannot afford for one to move out while carrying the cost of the marital residence.
e) Best Interest of Children: some couples state that they believe that staying separated and attempting to co-parent is in the best interest of their children. They still attend family functions together and send out cards together and attend their children’s school events together, but they just can’t live together.

The article also suggests that there are possible problems with staying separated rather than getting a divorce:

a) Marital Debt: even if separated a married couple is still bound to each other financially. So, if one spouse decides to go on a gambling trip and goes into serious debt, the other spouse may still be responsible for half of that debt.
b) Asset depletion: If you wait to long to get divorced the other spouse may have depleted all of their assets. It may have been much more profitable for both spouses to get a divorce once they separated than staying separated for many years.
c) More confusing for children: even though some couples state that they stayed separated for the sake of their children, not getting a divorce may cause more confusion for the children. Some couples still try to co-parent and remain married while living in different homes and having different relationships. For children of a young age it is difficult to understand why their mommy and daddy unlike other parents are living separate lives while still maintaining that they are married. For some children it may be a burden to keep quiet about a separation if their parents are trying to preserve their appearance of still being married for social status reasons.

I was at a networking event last night, where a woman I spoke to told me that she and her husband had been separated for seven years and that she was just beginning to think about getting a divorce. She explained that she has remained on her husband’s health insurance, they have filed joint taxes, and their child were young at the time, so they just decided getting divorced was not their first priority. Then, I met yet another women who explained to me that no matter what couples decide to do she believes that both spouses should go see a divorce attorney every six months or so to reevaluate their rights at that point, if they are going to remain separated.

I agree with every thing the author states, the reasons for staying married and the problems that may ensue from a lengthy separation; however, there is no mention in the article of the possibility of a separation agreement.

I draft separation agreements for couples all of the time, not because they wish to have a lengthy separation but as a grounds for their divorce in the state of New York (if you remain separated pursuant to a legal separation agreement filed with the court for a year that is ground for divorce). For couples wishing to remain separated for a long time a separation agreement legally filed with the court might protect the couple from some of the dangers of a lengthy separation. As just one example of the protection such a separation agreement might provide, it might states that as of a certain date each party’s debt is their own.

It is understandable that some couples may not want to involve lawyers or the court and may believe that staying separated works for them, but as a divorce attorney who witnesses the breakdown of the most cordial and loving relationships, a couple should protect themselves even if they are deciding to stay in a lengthy separation and not get divorced.

If you would like to read the article go to: http://www.nytimes.com/2010/08/01/fashion/01Undivorced.html?pagewanted=3&_r=1&ref=fashion

Until Next Time,

Helen M. Dukhan, Esq., LL.M. @ www.dukhanlaw.com