Legal Separation

What is a legal separation? First and foremost a separation, by agreement or Court Order, is NOT a divorce and does not automatically become a divorce. In New York if you live apart pursuant to the terms of a Separation Agreement or decree for one year or longer it will become an additional grounds for divorce. You can't marry someone else if you are legally separated (and not divorced).

A legal separation must be distinguished from a "trial separation" or just plain living apart. A legal separation provides both structure during the period of separation and New York's only true "no-fault" basis for a divorce should that be the path ultimately selected by the husband or the wife.

Why separate and not divorce? A legal separation is for couples that may be undecided about whether they will or will not divorce but want to have certainty regarding  money, property, and parenting issues while they decide, for couple who may require medical insurance for an otherwise uninsured spouse who chose to remain legally married so that one spouse can continue to benefit from the insurance coverage of the other, coverage but do not want to get divorced but want to live apart and decide on and for couples sometimes prefer separation for religious reasons. 

Separation Agreements

Separation Agreements both define everyone's rights and obligations while they live separate and apart but generally also provide that when there is a divorce decree or other court order, the Agreement will be "incorporated but not merged" into that Court Order. This means that the Separation Agreement will both continue to stand as an agreement on its own and can be enforced as a contract, but it will also become a part of a court Judgment of Separation or Divorce which can be enforced in the same manner as any other Order of the Court (through contempt of court proceedings). Separation Agreements are binding, for both parties, except that provisions involving the children, such as custody and child support, can always be changed by a court upon the demonstration of a change in circumstances sufficient to allow the Court to review the issue.

Before You Sign an Agreement

Separation Agreements should be drafted by a lawyer (including a lawyer who is serving as a mediator). If you do not have a lawyer, and the Agreement was drafted by your spouse, your spouse's lawyer, or even by a mediator or lawyer/mediator who was hired by both spouses, you should always take any Agreement to a lawyer to have it reviewed before you sign it.

 

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