New York Legal Separation


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In New York, a legal separation is considered a legally acceptable reason for granting a divorce. This is different from a trial separation, where a married couple lives apart for a trial period to determine if they want to get divorced. This type of separation has no legal basis and cannot be used as a ground for divorce. A legal separation should only be used if you have already made a permanent decision that you no longer want to live with your spouse.

In New York, a legal separation is referred to as “living separate and apart pursuant to a separation judgment or decree”, or “living separate and apart pursuant to a separation agreement”. In addition to residency requirements, New York requires grounds for granting a divorce, and this type of agreement is considered a ground, or legally acceptable reason, to eventually obtain a divorce, if that is the end result desired. Although, this ground is not used often. The grounds for divorce in New York State are defined in Domestic Relations Law § 170.

A separation agreement, in New York, is a written contract between the spouses that details the terms and conditions by which the parties will live apart, such as care and custody of children, spousal support, responsibility for debts, and division of money and property. It must cover how the parties will live separately for the rest of their lives. The agreement must be signed by both parties before a notary and filed with the County Clerk in the county where one of the parties resides. To obtain a divorce, the parties are required to live separate and apart for more than one year according to the terms and conditions spelled out in a properly executed separation agreement, after which, one of the parties may maintain an action for divorce.

To qualify as a judgment or decree of separation, the agreement must be signed by a Judge or Referee of the New York Supreme Court. To obtain a divorce, the parties are required to live separate and apart for more than one year after the judgment of separation is granted. The judgment is then eligible to be converted to a divorce action.

Please note, because these separation agreement are contracts, they have many technical requirements in order to qualify as a legal separation agreement. Therefore, it may be advisable to speak with an experienced family law attorney when using this type of legal separation as a ground for divorce.

If the parties cannot agree on terms and conditions for separation, there are Alternative Dispute Resolution (ADR) resources available to them. On September 1, 2009, the New York Collaborative Family Law Center opened. It is the first of its kind in the nation. The Center provides services that allow both parties to attempt to resolve their differences with one another, while being represented by lawyers who are specially-trained in collaborative law. They meet face to face to identify and address the issues they need to resolve for a separation agreement and/or a divorce. The process may also involve other conflict resolution professionals, such as mediators and divorce coaches.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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