New York law provides for legal separation two ways – pursuant to a judgment of separation or pursuant to a separation agreement. Both forms generally require that the couple live separate and apart and negotiate custody, support and property distribution issues. While some couples elect to separate informally and set up separate households without the use of a separation agreement, proceeding this way poses significant risks as explained further below.
Judgment of separation
A party may bring an action for separation by filing with the court and serving a complaint on the other spouse. The case goes through the court system resulting in a judgment of separation – which effectively is akin to a divorce judgment except that the parties remain legally married. To obtain a judgment of separation, you must prove one of the following grounds:
- Abandonment (actual or constructive)
- Cruel and inhuman treatment
- Failure to properly support spouse, if at all
- Spouse’s imprisonment for three or more years
Note that there is no “no fault” option for getting a separation as opposed to when a spouse seeks a divorce.
Financial and custody issues can be resolved through negotiation and settlement by the parties or, if they cannot come to an agreement, the court will decide.
Couples may also separate by negotiating and executing a separation agreement. This agreement should address the same issues that would be decided in a divorce matter – equitable distribution of property, spousal support, child support, child custody, and parenting time.
A crucial point to remember is that, absent a formal separation agreement, both parties are legally obligated to support the other. In addition, if the parties come to an informal agreement regarding support, meaning one without a formal separation agreement, they may find it difficult to preserve that informal arrangement if the recipient spouse goes to court.
One significant advantage with a separation pursuant to a formal separation agreement is the ability to preserve health insurance for the dependent spouse. However, judgments of separation and divorce trigger COBRA laws which, in New York, only provide the dependent spouse with health insurance for three years which they have to pay for.
Converting separation to divorce
New York law permits either spouse to convert the legal separation into a divorce without the permission of the other spouse provided that:
- the couple has lived separate and apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment, or
- the couple has lived separate and apart pursuant to a written agreement of separation for a period of one or more years after the execution of such agreement.
In order to divorce, a party must file a new action for divorce in court as the divorce judgment cannot be obtained through an action for separation. Although the separation decree or separation agreement do not have to be renegotiated, there are costs incurred to file the action and serve papers on the other spouse. There are also multiple documents which must be completed and filed with the Court before it can render a divorce judgment.
Separation may be the right solution for some couples, but it is crucial to get advice from an experienced matrimonial attorney to help ensure that the legal and financial issues are addressed, and any agreements are properly vetted to protect the rights of each party.
If you are considering separation, contact Jewell Law to learn how we can assist you.