The Law Offices of David Smoren, PLLC
The Law Office of David SmorenThe Law Office of David Smoren
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Legal Separation

New York – Legal Separation

What does it mean to be legally separated in New York and how is a legal separation accomplished are common questions asked by our clients. To answer these questions we need to make sure that our clients clearly understand the legal and practical aspects and differences between a separation and a divorce. Many times our clients have come to realize that a legal separation is not in their best interest and will only prolong the difficulties encountered in the marriage and ultimately result in additional costs to ultimately dissolve the marriage in the future. However, depending on a person’s individual situation, a legal separation can be the best choice to accomplish their goals. 

Only after a comprehensive analysis of your individual facts and the law will you be in a position to determine whether a legal separation is the right choice for you. At the Law Offices of David Smoren, PLLC we have the experience to assist our clients develop their goals and deciding what is best for their individual situation. Whether it is a legal separation continuing the marriage or a divorce that ultimately ends the marriage,  we will provide you with a confident legal opinion to assist you in determining what is best for your unique situation.

Call us today at 718 225-6700 for a free phone consultation, or to arrange for a comprehensive office consultation to discuss your options or simply post a comment or question on the contact form.


Legal Separation – The Basics

A legal separation can be obtained in New York State by either entering into written marital Separation Agreement with your spouse or by filing an action in the Supreme Court for a decree and judgment of separation. 

Obtaining a legal separation by a written marital separation agreement does not require filing an action in Court.  What is does require is for the parties to agree on the issues involved in the marriage and  then  having the terms reduced to a written contract that complies with the statutory requirements of the Domestic Relations Law and other applicable rules.

 In a Separation Agreement the spouses agree to live separate and apart from each other for the rest of their lives. The agreement should contain the respective rights and obligations of the husband and wife with respect to all financial issues, such as the equitable distribution of marital assets and debts, and if applicable, issues relating to minor children of the marriage such as custody, child support and visitation. Spousal support and estate rights, especially the waiver of same should also be addressed whether or not they are an issue. 

Once the terms of the agreement have been finalized and reduced to writing the parties will sign and acknowledge the agreement in front of a notary public. If certain vital formalities have been followed, the agreement becomes a binding contract between the parties and constitutes a legal separation without ever going to court. 

The hardest part of obtaining a legal separation by an agreement is actually negotiating and coming to terms that are acceptable to both sides. The other most important part is making sure that the agreement is prepared by an experienced attorney to ensure that it is a legally enforceable agreement that strictly comports with the law. 

The other avenue for obtaining a legal separation involves filing an action for separation in the Supreme Court, typically in the county where one of the spouses resides. The basis or grounds that must be alleged and eventually proven for the separation action are enumerated in Domestic Relations Law (DRL) Section 200, as follows:

    • The cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant.
    • The abandonment of the plaintiff by the defendant.
    • The neglect or refusal of the defendant-spouse to provide for the support of the plaintiff-spouse where the defendant-spouse is chargeable with such support.
    • The commission of an act of adultery by the defendant; except where such offense is committed by the procurement or with the connivance of the plaintiff or where there is voluntary cohabitation of the parties with the knowledge of the offense or where action was not commenced within five years after the discovery by the plaintiff of the offense charged or where the plaintiff has also been guilty of adultery.
    • The confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant.

These are typically the same grounds that are used in a Divorce Action but there currently is no “no- fault” provision and the actual abandonment period does not have to exceed one year. As with a divorce, the opposing spouse or defendant has certain defenses that are available to him or her against an action for separation.

 As discussed below, with a judicial determination that one spouse is entitled to a judgment of separation, the parties remain married and although issues of support can be determined by the court, there can be no judicial determination as to the division of marital property; property rights can only be decided in a divorce action.

Separation or Divorce?

            When is it appropriate to obtain a legal separation over a divorce?  With a legal separation, whether by agreement or by a judicial determination, the parties remain married, and unlike a divorce, the separation does not have to be permanent. The parties can rescind the written agreement or ask the court to revoke the judgment of separation based upon competent evidence of reconciliation.

            Often times a legal separation is desirable when reconciliation is possible or perhaps when religious beliefs disfavor divorce. However, often times a separation becomes necessary rather than desirable. One example has to do with health insurance. Typically upon a divorce, unlike a separation, neither party nor their insurance company is obligated to maintain a policy of insurance for the former spouse. This issue alone, with the ever escalating costs of health insurance has caused many couples to opt for a legal separation. This is true especially when one spouse does not have independent insurance or has ongoing health issues. Similar situations arise with pension rights and Social Security entitlements as well. Typically to collect Social Security benefits based upon your spouse’s contributions, you must remain married for 10 years.  

            Other circumstances, such as property rights and entitlement to spousal support may also be factors that determine whether a separation is appropriate rather than a divorce. A careful analysis of your specific financial situation must be done prior to deciding upon a divorce. This is true because typically the date that one files for a divorce is the date that property rights between the spouses substantially change and, the duration of the marriage is a factor that can be considered in determining spousal support and equitable division of the marital property. It is not that a divorce may not be appropriate; it is the timing of the filing of the divorce that may have a substantial impact on the rights of the parties.

            The above is an overview of the issues involved in determining whether a legal separation or divorce is appropriate for you.  As discussed, a careful analysis of your specific facts must be done prior to deciding whether a legal separation is appropriate.    At the Law Offices of David Smoren, PLLC we have the ability to assist you in making the decision as to whether a legal separation is right for you.

We have successfully negotiated and drafted numerous written legal separation agreements that have resulted in the achievement of our client’s goals without the stress and substantial cost of litigation.

Call us today at 718 225-6700 for a free phone consultation, or to arrange for a comprehensive office consultation to discuss your options or simply post a comment or question on the contact form.