How to File a Legal Separation in New York

By Teo Spengler - Updated July 23, 2018
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When you just can't live together another day but aren't quite ready for a New York divorce, you can file for a New York legal separation. Legal separation in New York looks a lot like divorce, except that you remain married, of course. But all or most of the issues resolved in divorce are also settled in a legal separation. Don't try getting married to someone else, though. A one-year separation also opens the door to a no-fault divorce in New York.

Legal Separation vs. Divorce NY

A divorce in New York ends a marriage. Each spouse goes separate ways, and each is free to marry again. In a legal separation, each spouse may go a separate direction, but neither is free to marry again. They remain married, but issues like finances and kids are resolved by agreement, court order or both. The technical name for legal separation in New York is separation from bed and board.

Who would prefer a legal separation vs. a divorce in New York? Anyone who has a vested interest in remaining married in the eyes of the law or the church. Some religions still forbid divorce, tax laws favor the married, and employee benefit plans can be essential to providing a non-working or independent-contractor spouse with health insurance or other important assistance. In addition, one year of legal separation permits a couple to obtain a no-fault divorce.

Filing for Separation in New York

Filing for separation in NY closely echoes filing for divorce. You start the process with a complaint, filling in the names and birth information of the spouses and all minor children. You must also include a statement establishing residency. To get a legal separation in New York, you must meet one of these requirements:

Where only one spouse resides in New York:

  • That spouse must have lived in state for two years
  • And the spouses were married in New York, the spouse currently residing in New York must have lived there for one year
  • And both spouses once resided in New York, the spouse currently residing in New York must have lived there for one year

  • And the cause for separation occurred in New York, the spouse currently residing in New York must have lived there for one year

Where both spouses reside in New York

  • And the grounds for legal separation arose in New York, no residency requirement applies.

You also have to let the court know in the complaint the grounds for legal separation. In New York, these include adultery, abandonment, neglect of a spouse, failure to support a spouse, cruel treatment and/or the case in which a spouse was sent to prison for three or more years.

At the same time that you file a complaint for legal separation in New York, you must file a summons, the legal document informing your spouse of the action. This must be personally handed to your spouse by a third party adult together with a copy of the complaint.

Marriage Separation Agreement

If you and your spouse are in agreement about the legal separation, you can prepare a marriage separation agreement together without filing anything in court. This is a legal contract between spouses agreeing to live apart that addresses financial matters including support, property division, and child custody and visitation matters if minor children are involved.

You can write this up yourself, but it is probably better to run it by an attorney. This is especially true if there are extensive assets or debts and/or you have minor children.

In any event, you each have to agree to it in full and sign it in front of a notary. At the point it is signed by the second spouse, it is a legally binding marriage separation agreement that the courts will enforce.

About the Author

Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.

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