New York Legal Separation

A legal separation alters the marital status between parties to the extent that although the marital relationship remains technically intact, the parties are legally recognized to be living separate and apart from each other, and not as husband and wife. If you are "legally separated," you are unable to remarry, until such time, if ever, that your legal separation is converted into an actual divorce. Parties to a marriage will opt for New York legal separation, as opposed to immediate divorce, for the following reasons:

• Neither party has grounds for divorce, the absence of which can be overcome by the fact that New York State recognizes living separate and apart pursuant to a written separation agreement, or judgment of separation, for one year, as grounds for divorce.

• Health insurance. If the parties remain legally married, customarily the spouse having health insurance benefits can maintain coverage on behalf of the other spouse, notwithstanding the parties' separation, as the marriage remains intact.

• In New York, legal separations are usually more amicable and less expensive, as parties are not required to appear in Court and, even upon converting a separation into divorce, may do so upon the mere filing of appropriate paperwork with the Court.

• Religious reasons.

• Possibility of reconciliation.

There are two procedural vehicles to achieve a legal separation.

The first, and by far the most common, is a written separation agreement. In New York, a legal separation is a contract which sets forth terms of settlement for all issues arising from the termination of the marriage, including property distribution, child custody, parenting schedules, child support, spousal support, allocation of debt and ancillary issues such as life insurance. Following both parties executing the agreement, they then live separate and apart for a period of one year pursuant to its terms. After that period has elapsed, either party has the right but not the obligation to commence a divorce action in order to convert the separation into a formal divorce.

The other less commonly utilized method is to obtain a judgment of separation from the court. To obtain a judgment of separation, one spouse must commence a formal separation proceeding with a Court of competent jurisdiction, and demonstrate one of the following grounds:

• Cruel and inhuman treatment of the plaintiff by the defendant

• Abandonment for a period of one year

• Failure or neglect by defendant to provide support pursuant to the Domestic Relations Law or Family Court Act

• Adultery

• Imprisonment by Defendant for at least three consecutive years

Parties may opt to seek a judgment of New York legal separation for the reasons set forth above, although more often than not, parties seeking a legal separation opt to pursue amicable settlement via separation agreement, as opposed to a contested separation proceeding.

In either circumstance, since significant rights are at issue in a legal separation, it is highly recommended that you consult with an experienced family law attorney to discuss how you might best implement a legal separation in New York.