Heidi E. Opinsky

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Legal Separation In New York & Connecticut

If you and your spouse are experiencing marital trouble and are considering ending your relationship, you may want to consider the possibility of opting for a legal separation instead of a divorce. Legal separation still allows you to divorce later, making this an attractive avenue for many couples. Below, veteran divorce lawyer Heidi E. Opinsky goes over the topic of legal separation in New York and how to book your consultation to discuss separation or divorce. 

What Is Legal Separation? 

A legal separation is a court-ordered agreement that enables two married persons to live separately without getting a divorce. When a married couple is unclear about the condition of their relationship but wants to live separately and make decisions about things like asset distribution or child custody and support, a legal separation may be a viable legal option.  

It’s crucial to understand that legal separation encompasses more than simply leaving your marital home and living away from your spouse. A formal separation agreement is required if you wish to become legally separated, or rarely, a judge will enter a judgment of separation. If a spouse later violates a separation agreement, it may be enforceable in family court.

The Difference Between Divorce & Legal Separation 

Divorce is a legally binding process that ends a marital relationship. New York law requires that upon divorce, all assets are equitably distributed. A family court must also determine how child custody, child support, and alimony or spousal support will be handled. 

Couples who cannot resolve critical relationship issues may need to divorce right away. That said, even if you feel you will eventually file for divorce, a legal separation may afford you a smoother transition. Time apart from your spouse will not only offer you a unique perspective but it will also provide you with some alone time while your children are with their other parent, if you have them. This can help you come to grips with the state of your marriage and make decisions about the future without interference in your judgment. 

The Difference Between Legal Separation & Annulment 

An annulment, in contrast to divorce, views a legitimate marriage as if it never existed. In other terms, when a judge awards an annulment, it means the state does not acknowledge the union as a legally legitimate marriage. 

A married person can obtain an annulment in New York under a few different circumstances, including but not limited to the below: 

  • One spouse forced or defrauded the other into the marriage 
  • One spouse could not have legally consented to the marriage (e.g., in cases of underage brides or weddings that take place when one or both spouses are intoxicated) 
  • One or both spouses were previously married (bigamy) 
  • The spouses are related to each other by blood (consanguine marriage

Generally, you will choose either to have your marriage annulled or to legally separate from your spouse. In most cases, a couple would not legally separate and then pursue an annulment. However, the latter could occur if a couple were to legally separate and then later discover they were related to each other by blood. At that time, evidence of consanguinuity can be offered to the court which can then grant an annulment provided that the grounds for annulment are met. 

Benefits of Legal Separation 

In general, a separation agreement is considered to be a less drastic solution than getting a divorce. Separation can provide arguing couples who need some distance with a little time apart before deciding whether or not to actually move forward with getting a divorce. Couples who want to get a divorce may not be able to due to a variety of challenges, including financial hardship, medical conditions, and childcare. 

Under New York and Connecticut law, a legal separation keeps a married couple legally wed on paper. Neither spouse is permitted to remarry or engage in sexual relations with someone other than their spouse during the time they are legally separated. 

After the petition has been filed, a family court can evaluate many of the same issues as if the couple was getting a divorce. For example, a court can assess child support, child custody and visitation, alimony, and equitable property division. This is a significant benefit to obtaining a legal separation because, unlike just opting to live apart, pursuing formal separation provides financial incentives and offers parents a time-sharing schedule. 

If a married couple later decides to divorce after they are legally separated, many of the decisions made above will likely stay the same. This can help make the divorce process go more smoothly.  

How Does Legal Separation Work? 

To obtain a legal separation, you must first meet certain eligibility criteria. First, you must be physically separated from your spouse. This means you must have moved out of the marital home prior to filing a petition to legally separate. You also cannot qualify for a fault divorce, meaning that your spouse did not abandon you, commit adultery, etc.) If the requirements are met, either spouse can file a Petition for Separation. 

New York Residency Requirements For a Legal Separation 

New York does not have a residency requirement for legal separation if both spouses are state residents and if filing a fault divorce, the grounds for divorce occurred within the state. If you do not meet these residency requirements, you must meet one of the two criteria: 

One or both spouses have been living in New York continuously for a minimum of two (2) years before filing for a legal separation 


One or both spouses have been living in New York continuously for a minimum of one (1) year before filing for a legal separation and 

  • you were married in New York 
  • you were living in New York at the time you got married
  • if applicable, the grounds for separation arose in New York  

Connecticut Residency Requirements For a Legal Separation 

At least one spouse must have resided in the state of Connecticut for no less than one year before filing a petition for a legal separation. Or, at least one spouse must have lived in the state of Connecticut at the time the couple were married and then returned to continuously reside within the state prior to filing for a legal separation. These cases fall within the exclusive jurisdiction of the Connecticut Superior Court. 

Signs a Legal Separation May Be Right For You 

Here are some indicators that you may want to consider a legal separation from your spouse: 

  • Your spouse doesn’t participate in the marriage anymore. A separation may be an option if your partner no longer acknowledges you, isn’t as affectionate with you as they once were, they leave the home often or stay away for days at a time, and has generally started to act like you don’t exist.  
  • Your children are all that are preventing you from getting a divorce. If the only reason you’re not yet pursuing getting a divorce is for the sake of your children, it’s important to understand that you are already forcing them to live in a toxic home. It’s often beneficial for children when parents separate and they can process the resulting emotions after the split. Staying in an unhappy home where there’s yelling, arguing, and fighting often can cause children extreme distress. 
  • You rely on your spouse only for financial support. If you no longer have an emotional connection to your spouse and remain with them because you cannot afford to live on your own, it may be time to consider your future. 
  • You are a victim of domestic violence. If you are the victim of domestic violence or are in a marriage with someone who is verbally, physically, emotionally, mentally, or sexually abusive, it’s in your best interests and the best interests of children if you have them to separate and get to safety as quickly as possible. Call the National Domestic Violence Hotline at 1-800-799-7233.
  • You and your spouse no longer trust each other. If your spouse has cheated on you or the trust has eroded from the relationship for another reason, this could be an indicator that separation or divorce is the right choice. 
  • Your relationship is in trouble and your spouse doesn’t want to work on it. If your spouse has no interest in improving the relationship, there are not many other options at your disposal to move forward. 
  • Marital counseling has been unsuccessful or your spouse refuses to go. If you and your spouse obtained marital counseling for a significant length of time and it has been unsuccessful or your counselor has recommended legal separation, you should seriously consider it. The same is true if your spouse flat out refuses to even attempt counseling. 
  • Arguments and fighting are frequent in your home. Consider a legal separation if your marital home has become toxic and full of stress, fighting, and arguments. This may be especially necessary if you have children. 

How CT & NY Divorce Lawyer Heidi E. Opinsky Can Help You 

Veteran Connecticut and New York divorce lawyer Heidi E. Opinsky can help you learn more about legal separation and decide if separating from your spouse is the right path forward. Contact Attorney Opinsky today for an initial consultation to discuss your case in detail and discover the options available to you by calling 203-653-3542.