Mediation and the Decision to Separate or Divorce

Mediation and the Decision to Separate or Divorce By Susan Ingram

{3:10 minutes to read}

When couples first come to me as their mediator, they know that their marriage or relationship is not working and that they do not want to continue together as a couple.

  • Some tell me they want to proceed to divorce as quickly as possible;
  • Others are more comfortable working out the details of a legal separation and waiting to see how that goes before they decide whether, or when, to follow through with the divorce.

From my perspective as their mediator, either of these choices is fine, and it very much depends upon the specific situation of each couple. I can help them accomplish what they want under either scenario.

It’s important to understand the difference between a legal separation and a divorce, since people can be confused about this.

(Note that what I write here is true in New York State, where I have my legal and mediation practice; other states’ laws may differ.)

Legal Separation:

In a very general sense, any couple can refer to themselves as separated, just by the fact that they choose to live apart and have separate lives. But the concept of “legal separation” takes it further.

In a legal separation, the couple has executed a document that defines the agreements they’ve reached with respect to the key aspects of their relationship going forward. These issues include:

  • Distribution of their personal and real property;
  • Custody of their children and parenting arrangements;
  • Child support and/or spousal support; and
  • Other important issues related to health insurance, debts, life insurance, etc.

The legal document that the couple signs is frequently referred to as a marital settlement agreement or a separation agreement. This document is signed by both parties and notarized. At that point, it is treated like any other legal agreement between two parties and, if need be, it can be enforced by either party by bringing the other to court.

Sometimes a couple may choose not to proceed to divorce and to instead remain legally separated for a period of time for a specific reason, such as the desire of one of the parties to continue under the other’s health insurance plan; this is an important concern, since once divorced, each would need to obtain their own insurance.


Whether it is sooner or later, most couples do decide to proceed to divorce and must obtain a divorce decree issued by the court.

While there are many documents that need to be prepared and filed in a divorce action, the most important is the settlement agreement.

  • For couples that know they definitely want to proceed to a legal divorce, the settlement agreement I prepare for them covers the main points I’ve described above.
  • For couples who are legally separated, essentially the same agreement I prepared for the separation can be submitted to the court as part of the divorce documents.

The beauty of the mediation process is that a couple can take the time to decide whether they wish to proceed with a legal separation or go straight to divorce. In either case, I can help them create the settlement agreement that will provide the foundation for them to move forward with their lives.

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