Obtaining a Legal Separation in New York
In New York, there are two ways to obtain a legal separation:
- Amicably resolve differences and memorialize them in a settlement agreement; or
- Fle an Action for Separation with the court to get a Judgment of Separation in a contested proceeding. This is very rare; most family lawyers would never have a client seek a contested separation.
There could be several reasons why a married couple might choose to legally separate and not pursue a divorce. One reason may be a spouse’s concern about maintaining his or her medical insurance. Where one spouse’s medical insurance is provided by the other spouse’s employer, coverage for the non-employee spouse terminates upon the dissolution of the marriage. Remaining legally married, however, ensures coverage for the non-employee spouse, as a legal separation would not terminate his or her insurance coverage in most cases.
Someone might have psychological or religious reasons for choosing legal separation instead of divorce; they want to stay married, but they also want to live separate and apart from each other. A legal separation can remain in place indefinitely if both spouses do not wish to convert it into a divorce. However, after one year from the date of signing has expired, either party can ask the court to convert such a legal separation into a divorce.
Separation Agreement vs. Divorce Agreement
Traditionally, a separation agreement would be a mirror image of a divorce agreement. It resolves issues related to children of the marriage, if any, and would provide for custody and parental access time, child support, and perhaps college education and support issues.
A separation agreement also deals with financial issues. The couple must follow the same process of categorizing all assets as either marital or separate property, identifying all of the marital assets (generally, these are assets acquired during the marriage without regard to whose name they are in), valuing the marital assets, considering the tax implications of those assets, then equitably distributing the marital assets. Some assets are easy to value, and others require experts.
A separation agreement can form part or all of a later divorce agreement, which is why it is so important that parties are represented and have full and complete financial disclosure upon entering into a separation agreement. This is especially true in that one of the two parties could subsequently convert a separation into a divorce, and even if there is a contested divorce in the future, the terms of the separation agreement, to the extent that they resolve the child related and financial issues, would be valid.
There is one caveat: when parties sign any separation or divorce agreement that includes provisions concerning their children, the court always has the authority to modify or change the child-related terms of such an agreement. The reasoning is that the children were not parties to the agreement, and a court can modify terms which are inconsistent with their best interests. After the separation agreement has been finalized, one of the parents or the children can petition the court to revise the sections pertaining to the children, presenting proof to show why one or more contractual provisions are not in the children’s best interest.
How to Create a Valid Separation Agreement
The process begins with both spouses providing full and complete financial disclosure. Married spouses have a fiduciary obligation to be truthful and honest when entering into an agreement to separate; if they don’t provide full and complete financial information, then the agreement can be invalidated at a later date.
Believing it will save time or money, some divorcing couples attempt to create their own agreement without professional assistance. In New York, a separation agreement must be executed with the same formality required for a deed to be recorded, which includes having a notary sign an acknowledgment.
Depending on the terms of your separation agreement, if at some point you decide to reconcile, only to discover that your relationship is not improving, it is important to know that temporary reconciliation could invalidate a separation agreement. An experienced attorney will provide a reconciliation provision, which would supersede the common law that otherwise would terminate a separation agreement in the event of reconciliation.