How to File a Legal Separation in New York

By Renee Booker
Filing for legal separation in New York.

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New York is one of many states that allow married couples to file for a legal separation. A legal separation is an alternative to filing for a divorce when spouses no longer wish to live together as husband and wife. Most of the issues that can be settled in a divorce can also be settled in a legal separation. Unlike a divorce, however, at the end of a legal separation the parties are still legally married and are not legally able to remarry.

Confirm that you meet the residency requirements to file a complaint for legal separation. Most of the time either you or your spouse must have lived in New York for at least one year prior to filing the complaint.

Prepare a complaint for legal separation and summons. Forms for a complaint for divorce and summons can be found on the New York Court Help website (See Resources). Use these forms by simply replacing all references to divorce with the words “legal separation.” The complaint must include the full names and birthdates of you, your spouse and all minor children of the marriage, the dates of marriage and separation, the grounds for the separation, a statement regarding residency and a brief description of what you are asking the court to grant you in the separation.

Serve the summons to your spouse to notify him or her that you have filed the complaint. In New York, service must be effectuated by personal service. This means someone must personally hand your spouse the complaint.

Make several copies of the complaint and summons. Take the complaint and summons to the clerk's office in the county where you are planning to file and file them there. Pay the required filing fee.

If your spouse agrees to the separation, you may have the court clerk place your case on the court's calendar immediately after service has been completed. If your spouse does not agree, you must wait at least 40 days after service was completed.

File an agreement with the court if you and your spouse reach an agreement that addresses all the issues in your separation. If you reach an agreement on your own, you will not need to appear in court. The judge will sign the decree of separation and you will be legally separated.

Appear in court for a hearing if you are unable to reach an agreement that resolves all issues. At the hearing, the judge will review evidence and listen to testimony before ruling on the contested issues. After the hearing the judge will sign the decree and you will be legally separated.

About the Author

Renee Booker has been writing professionally since 2009 and was a practicing attorney for almost 10 years. She has had work published on Gadling, AOL's travel site. Booker holds a Bachelor of Arts in political science from Ohio State University and a Juris Doctorate from Indiana University School of Law.

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