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Spouses can become legally separated in two different ways in New York: a Separation Agreement or a Judgment of Separation.
A separation agreement is a contract between spouses that can be enforced by New York courts if a spouse fails to comply. Such an agreement may cover various issues, including child custody, visitation rights, division of property, and spousal support. The agreement may later be included in the divorce judgment. It is important that the agreement be prepared by a qualified attorney.
In order for a separation agreement to qualify as a ground for divorce, certain requirements should be carefully followed. The agreement must be filed with the county clerk where either spouse resides. At the end of one year from the date of the agreement, either spouse may sue the other spouse for a divorce. At that time, the party that filed for the divorce must prove to the court (1) that the agreement was duly executed and acknowledge and properly filed, (2) that the spouses have in fact lived apart during the period of the agreement up the time of the divorce action, and (3) that the party that sued for divorce has substantially complied with the terms of the separation agreement.
A Judgment of Separation is granted by the Supreme Court of New York (despite it being called “the Supreme Court,” this is actually New York’s trial court; it is not the highest court in the state, as the name might seem to imply). A Judgment for Separation is based on similar “fault” grounds as for divorce in New York. That is, for a Judgment of Separation, you have to present specific grounds establishing that the separation was the fault of one of the spouses. The possible grounds are:
- (1) cruel and inhuman treatment
- (2) abandonment
- (3) failure to provide support
- (4) adultery
- (5) imprisonment
To fully understand divorce law and family law, it may be necessary to read and interpret statutes with case law and regulatory law. It is important to check to see if laws are up date. For these and other reasons, it is always best to consult with a qualified family law attorney. The legal information on this website is not intended as legal advice and should not be relied on as such. It is intended only as an introduction to the way that the law functions in these areas.
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