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Can Legal Separation Be Litigated in a NY Court?

Not every person wanting to end their romantic relationship with their spouse files for divorce. There are many reasons why they sidestep dissolution for a legal separation.

A separation can be litigated in a New York court, but most couples choose a separation agreement instead.

An official separation can take one of two routes: a separation agreement or a separation decree. A separation agreement is usually negotiated by the spouses through mediation or their attorneys. A separation decree is a judgment of separation issued by a judge. The decree is similar in cost and time to a divorce. For that reason, many couples choose not to take their separation to court.

Reasons to File for a Separation Judgment

An action for separation seeks a judgment entered by the New York Supreme Court. The decree separates the spouses “from bed and board, forever, or for a limited time.” A spouse may want to establish the improper conduct of their partner as a means to strengthen their case for child custody.

A petition for a judgment of separation must be based on specific reasons or fault grounds:

  • Cruel and inhuman treatment
  • Abandonment
  • Neglect
  • Adultery
  • Imprisonment (three or more consecutive years)

A judicial judgment has residency requirements.

Like a divorce on fault grounds, the grounds must be proven in the separation trial. Also like divorce, the defendant-spouse must be served and given the opportunity to answer the claims put forth in the petition.

A court-ordered separation does not dissolve the union. Both parties remain legally married and cannot marry someone else without finalizing a divorce. The judgment of separation can be used as grounds for a no-fault divorce after the couple has lived apart for at least one year.

The Benefits of a Separation Agreement

A separation agreement does not require a court petition or hearing. There is also no residency requirement to enter into a voluntary separation agreement. Instead, the two spouses work out an arrangement that works for them and any involved children. This method is far less acrimonious than a judicial separation, but there can still be disputes over its terms.

Spouses who remain friendly are still advised to hire separate attorneys to ensure all the bases are covered and each person’s individual interests are addressed.

The agreement covers the same terms that are traditionally handled in a divorce settlement:

The separation agreement can also outline where each spouse will live, who is responsible for paying for living expenses, and all other matters pertaining to the marital relationship. Once the agreement has been completed, the document is binding once it is signed, notarized, and filed in the county clerk’s office.

An agreement that is reasonable to both spouses and meets the children’s best interests can be used as a basis for a divorce agreement should the couple choose to formally end their marriage after living at least one year apart.

Living Apart Without an Agreement

Two spouses can choose to live separately without a notarized agreement. They can still choose to go to Family Court to formalize child custody, child support, and visitation arrangements. An informal separation cannot be used as grounds for a divorce no matter how long the spouses have lived separately.

Ensure Your Separation Agreement Passes Legal Muster

As well-intentioned as spouses might be, DIY separation agreements often leave holes that can lead to further arguments down the road. Incomplete agreements will also not be recognized by the courts.

Our skilled attorneys at the Law Office of Dennis R. Vetrano, Jr., LLC can help you draft a comprehensive, legally sound separation agreement. Schedule a consultation with our team by calling (845) 605-4330 or reaching out online.