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Legal Separation or Divorce: Which Choice is Right for You?

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Can your actions during a legal separation affect your custodial rights in a subsequent divorce judgment? In a recent Second Department case, the court answered this question in the affirmative. In Eison v. Eison, a married couple chose to legally separate instead of filing for divorce. The couple remained separated for several years, and during this period, the children resided primarily with their mother.


The decision to legally separate instead of (or prior to) obtaining a divorce is a common choice made by couples experiencing turbulence in their marriages.  Unlike divorce, a legal separation does not put an end to the marriage, but enables the parties to live separately while remaining married.


There are many advantages to obtaining a legal separation instead of a divorce. First, it allows couples time apart, away from the conflict of the marriage to decide if they truly want a divorce. In addition, it allows for the retention of health benefits and certain other benefits that divorce would bring to an end. Finally, if your religious beliefs conflict with divorce, you are able to live separately while still retaining your marital status for religious beliefs.


However, legal separation has several disadvantages as well. Because you are still married, you cannot remarry or enter into a domestic partnership. Additionally, separation doesn’t always terminate either spouse’s right to inherit from the other. Finally, sometimes couples choose to legally separate and then ultimately file for divorce as well.


In the Eison case, the couple ultimately decided to obtain a divorce. The mother filed a petition for sole legal and physical custody of their children. The father opposed this petition, arguing he was entitled to just as much time and decision-making authority over the children.


Despite evidence that the father was a loving and capable parent, the court held that it was in the child’s best interests to remain with their mother. The determining factor in this case was the fact that the children had lived primarily with their mother throughout the separation. Allowing them to remain with her would promote consistency and stability.


Are you are considering filing for divorce or legal separation from your spouse? All clients should be informed of their rights, responsibilities and the various alternatives they may pursue during this stressful time. If you would like to speak to a trusted and experienced Long Island Divorce Attorney to discuss your options, please contact the Law Offices of Jay D. Raxenberg. Call (516) 491-0565 or toll free at (888) 543-4867.


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