In New York, to obtain a divorce, fault must be assigned to either the husband or wife except when the divorce is based upon the ground of legal separation. Accordingly, some married couples wish to become legally separated so they can divorce without assigning fault to one party. It is important to note that a married couple living apart is not legally separated regardless of how long they live apart.

There are two ways to become legally separated in New York. The first, and by far the most common way, is by having both the husband and wife sign a separation agreement. In signing a separation agreement, the agreement must have certain language and be notarized. The agreement should contain the terms of how financial and property issues are to be resolved. In addition, if there are children involved, the agreement should contain the terms of custody, visitation, child support, medical insurance coverage, and all other related issues.

When obtaining a separation agreement, the husband and wife should each have their own lawyer represent them. Although it is possible for one party to have his or her own attorney and have the other spouse be pro se, that is represent him - or herself, such a situation is not advisable. If one party does not have his or her own lawyer, that party may later try to invalidate the legal separation agreement due to the fact that he or she did not have the benefit of his or her own independent lawyer. Although it is not a requirement that a legal separation agreement be filed with the county clerk, it is a good idea to do so. Each party should be given a clerk-certified copy of the legal separation agreement.

A divorce based upon legal separation is not automatic. After being legally separated for one year, either party can commence an action for divorce based upon being legally separated. In order to initiate the action for divorce, the clerk-certified copy of the legal separation agreement is needed. In order to be granted a divorce based upon the grounds of legal separation, the two spouses must have lived apart for at least one year and have substantially complied with the terms of the agreement. The terms of the legal separation agreement could become part of the judgment of divorce.

The second, and much less common way to become legally separated is by obtaining a judgment of separation. To do this, a spouse needs to bring an action. The grounds for starting an action for separation are the same grounds as for a divorce, except in the case of abandonment, which can be less than one year for a judgment of separation. In addition, an action for separation for non-support can be commenced. Similar to being separated pursuant to a separation agreement, divorce is not automatic a year after the judgment of separation is issued. After being legally separated pursuant to a judgment of separation, either party can commence the divorce action based upon the judgment of separation.

If spouses are considering signing a legal separation agreement, it is strongly recommended that they have the agreement drawn up by a lawyer. Using do-it-yourself forms or paralegal services can lead to future difficulties. If the agreement is not completed correctly, it may turn out to be worthless if either side attempts to have it enforced or base a divorce upon it.