In New York, a Marital Separation Agreement is a detailed contract which should be prepared by divorce lawyers. In their 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 duties of 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. Certain vital formalities must be carefully followed, or the written agreement may not be enforceable. Under New York law, a marital separation agreement must be signed and acknowledged in the same manner that would entitle a deed to be recorded. Because the signing and acknowledgement requirements must be strictly followed, it is essential for you to have a separation agreement prepared by an experienced New York divorce lawyer. After the execution of your separation agreement, the agreement (or a memorandum of separation) may be filed in the Clerk of the County in New York where either of the spouses resides.
Answers to Frequently Asked Questions Regarding Legal Separation under New York's Domestic Relations Law
- What is the Difference between a Decree of Separation and a Separation Agreement?
In order to obtain a Decree of Separation under New York law, an action for a separation must be commenced (Domestic Relations Law ("DRL") § 200), and a judgment entered based on one of the enumerated grounds set forth in that statute.
In contrast, the Separation Agreement, while sometimes filed with the Court, are contracts executed and acknowledged by both parties. If the parties reside separate and apart from each other for a period of at least one year following the execution of the Separation Agreement, they may be able to obtain a "conversion divorce" under DRL § 170 (6). Regardless of whether they live separate and apart from each other, the Agreement may be enforced pursuant to § DRL 236 B(3).
- What is the Difference between a Decree of Separation and a Decree of Divorce?
- A Separation Decree Does Not End Your Marriage:
First, unlike divorce, a legal separation does not end your marital relationship. Consequently, the Court does not have the authority to distribute marital property in the context of a separation action. Equitable distribution of marital property may only be accomplished in connection with the issuance of a Judgment of Divorce. In the case of Valade v. Valade, 261 A.D.2d 881 (4th Dept. 1999) the distinction between the two different causes of action was apparently lost upon both the litigants and the trial court judge. Their error was corrected by the Appellate Division, which issued a terse, on paragraph decision, in which it ruled:
Supreme Court lacked authority to distribute the marital property in this action for separation because such an action does not result in the dissolution of the marriage (see, Domestic Relations Law §§ 200 Dom. Rel., 236 [B] ). We modify the judgment, therefore, by vacating those decretal paragraphs that distribute the marital property. Id.
- A Judgment of Separation is Revocable.
Second, unlike a divorce, a Judgment of Separation may be revoked by the Court upon the parties' joint application, provided that the parties submit "satisfactory evidence of their reconciliation." DRL § 203. Thus, a legal separation under New York law is not necessarily permanent.
- A Separation Decree Does Not End Your Marriage:
- What are the Legal Grounds Required to Obtain a Judgment of Separation under New York law?
The legal grounds that a plaintiff must establish to get judgment of separation under New York law are set forth in DRL § 200, and they are summarized 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.
- What are the legal Defenses Available to a Spouse Who Wishes to Contest an Action for Separation?
Misconduct by Plaintiff May be Raised as a Defense to a Separation Action. DRL § 202 expressly states that the defendant may defend against an action for separation by establishing "in justification, the misconduct of the plaintiff."