Legal Separation    

Simply by living apart a married couple 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 for the spouses to enter into a legal separation agreement.   The second and seldom used way is for a judgment of separation to be granted by the court.

Some married couples who cannot get along may wish to remain married but live apart.  These couples may choose to enter into a legal separation agreement so that terms regarding children and or financial matters are defined.  Sometimes married couples who are living apart enter into a legal separation for a legal reason, such as, for example, to qualify for financial assistance or to become a foster parent.

In New York, most couples who enter into a legal separation agreement intend to divorce.  To obtain a divorce in New York, fault must be assigned to one of the parties, except when the divorce is based upon a legal separation. Accordingly, most married couples legally separate so that they can divorce without assigning fault to either party.  This procedure is as close as New York gets to a “no-fault divorce.”

The separation agreement must meet certain requirements in form and language, especially when minor children are involved.  All of the issues addressed in a divorce, such as custody, child support, spousal support, and distribution of assets, must be addressed in the legal separation agreement.  Accordingly, agreeing to the terms of a legal separation is often no easier than agreeing to the terms of a divorce.

When seeking a separation agreement, especially when children and or financial issues are involved, each of the parties should have an attorney.  Although it is possible for only one of the parties to have an attorney, it is not advisable. The party who does not have an attorney may later rely upon lack of counsel as the basis to invalidate the legal separation agreement.

Although not required, it is advisable to file the signed legal separation agreement with the county clerk.  This will prevent anyone from making unauthorized changes to the agreement and will avoid concern about the loss or destruction of the original legal separation agreement.  The legal separation agreement must be filed in a county in which at least one of the parties resides.  Be sure to obtain a certified copy of the legal separation agreement from the county clerk. 

After being legally separated and living apart for at least one year, either party may start a divorce action based upon the ground of being legally separated.  If a divorce action is based upon a legal separation agreement, the certified copy of the legal separation agreement must be filed with the divorce petition.  If the separation agreement was not filed when it was signed, it may be filed at any time prior to the commencement of the divorce action.  Note, the original legal separation agreement must be filed; copies are not acceptable.  Once the divorce is granted, the terms of the legal separation agreement may be included in the judgment of divorce.

The second and seldom used method of obtaining a legal separation is by obtaining an order of legal separation from the court.  To do this, one spouse needs to sue the other spouse for legal separation.  Since this would likely cost as much as suing for divorce, this course of action is not often used.

The grounds for starting an action for separation are the same as for a divorce with two differences.  The first difference is that abandonment can be for a period of less than one year.  The second difference is that the action for legal separation can be based upon non-support of the other spouse.

As with a legal separation agreement, either spouse can commence a divorce action after living apart pursuant to an order of legal separation.  Also, as with a legal separation agreement, the terms of the order of separation may be included in the judgment of divorce.

Our fee for a basic legal separation agreement is $750.  The court fees are $218.  Accordingly, the total fee is $968.  Call us at (718) 625-0800 to schedule a free consultation.

Pursuant to New York law this website is considered attorney advertising.