Before the state legislature allowed no-fault divorce in 2010, legal separation was common in New York. Until that time, separation was the closest option New York had to no-fault grounds, and it had to be substantiated by an agreement or judgment of separation. Since 2010, on the other hand, spouses may eliminate the separation waiting period altogether and file for divorce on grounds of irretrievable breakdown of the marriage. However, you can still legally separate, even if you have no plans to eventually divorce.
Separation by Agreement
New York offers two options for legal separation. The simplest is to agree on terms with your spouse regarding issues of child custody and support, who is going to retain what property, and which spouse – if not both – will be responsible for marital debts. You can also address payment of household bills and expenses, particularly if one of you will remain in the marital home and the other is moving out. If the spouse retaining the home can't manage the mortgage and associated expenses on her own, you may have to negotiate spousal support or another arrangement, such as selling the home. The important thing is the agreement should address all possible issues between you, and some of these issues may be unique to your marriage. You can then draft the provisions into a formal separation agreement. It becomes a legally binding document when both you and your spouse sign it and have your signatures notarized.
You don't have to file your separation agreement with the court in New York, but you have the option of doing so, if you like. Filing it will eliminate any potential for dispute, because the agreement will be on record with the court in its original form. There's a fee for filing, but it carries over into the filing fee for your complaint, if you choose to file for divorce at a later time. The fee is only payable once.
Separation by Court Order
If you want to separate but you and your spouse can't agree on terms, you have another option. You can have the court decide the terms for you by filing a complaint for separation. The process is very similar to filing for divorce, except you're not actually ending your marriage. You must file the complaint on fault grounds, and New York recognizes five fault grounds for separation. They include cruel and inhuman treatment, abandonment, adultery, the imprisonment of your spouse for three years or more, and neglect or the refusal of one spouse to provide financially for the other. After a trial, a judge will issue a judgment of separation ordering a resolution of all the issues between you.
Read More: Do I Have to File My Legal Separation With the Court?
Conversion to Divorce
After you're legally separated, you can maintain the status quo indefinitely, or you can ask the court to convert your separation judgment or agreement to a divorce after a year's time. Your separation agreement or judgment serves as your grounds for divorce. If you didn't file your separation agreement with the court at the time you signed it, you must file it at the time you file a complaint for divorce, and you can ask the court to carry its terms over into a divorce judgment. A conversion divorce isn't an option, however, if you've just lived separately for a year without either a signed agreement or a judicial order of separation.
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.