Law Offices of Rong T. Kohtz

What is a legal separation?
Does a person have to be legally separated before obtaining a divorce?
What are the grounds for an action for separation?
Is there an advantage to a legal separation?
Are there any tax advantages to a legal separation?
Why would a spouse who is receiving support agree to this arrangement if it results in more taxes for her or him and a tax advantage to the other spouse?
Are there psychological advantages of a legal separation?

Q : What is a legal separation? A : A "legal separation" means that the husband and wife are living separately, and they have formalized the arrangement by a court order or a written agreement between themselves. The order or agreement usually will state that the parties are living separately, and it will specify arrangements regarding spousal support, child support and custody or visitation. A legal separation is not the same as a divorce. A separation recognizes the possibility that the couple might reunite. In any case, its terms can be modified by the parties or the court when the couple divorce. Most importantly, people who are legally separated may not remarry. They must wait until a divorce is final before marrying again.

Q : Does a person have to be legally separated before obtaining a divorce? A : No. A couple can proceed straight to a divorce without first seeking a legal separation.

Q: What are the grounds for an action for separation? A: New York provides five grounds for separation (1) cruel and inhuman treatment; (2) abandonment; (3) nonsupport; (4) imprisonment; and (5) adultery. Four of the five grounds are grounds for divorce, and they are substantatively the same except that the ground of abandonment must persist for one year before a divorce action while there is no such a restriction in a separation action.

Q : Is there an advantage to a legal separation? A : That depends on the needs of the parties. A legal separation offers a structure of support and custody that the parties can rely while they are waiting for a divorce (or while they are considering a divorce), and this structure usually will later be incorporated in the final divorce decree. If the terms of support and custody are part of a written agreement or court order, the parties know what to count on, and a party can go to court to seek enforcement if the other does not abide by the agreement or order.

Q : Are there any tax advantages to a legal separation? A : Yes, potentially. If one spouse is paying spousal support for the other, the payer can deduct that money from his/her income for tax purposes. The payment will then be considered taxable income to the recipient. If the payer is in a higher tax bracket than the recipient, this will reduce the couple's combined tax liability. In any case, it will reduce the payer's taxes and raise the recipient's. To obtain such a deduction, the parties must be legally separated by written agreement or court order. The deduction is not available for those who have an informal separation.

Q : Why would a spouse who is receiving support agree to this arrangement if it results in more taxes for her or him and a tax advantage to the other spouse? A : The tax advantage to the payer may encourage paying spousal support in the first place and it may result in a greater amount of support. Some couples and their lawyers may calculate a tentative amount of support that would be paid without any tax benefit to the payer. Then they calculate the tax benefit of creating a deduction for the payer and income for the recipient. They split the tax savings by increasing the level of support. The increased support usually exceeds the added taxes the recipient will pay, and the payer will have less money out-of-pocket for the year because of the tax savings.

Q : Are there psychological advantages of a legal separation?

A : For some people, yes. Some men and women may want to separate but are not sure they want to go through a divorce. The separation might be a "trial separation"--relieving some immediate pressures while the husband and wife sort out what they want to do with their lives. And a formal legal separation may provide a structure for the divorce.