Simply by living apart, regardless of how long, a married couple is not legally separated. There are only 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 Supreme Court of New York.
Some married couples, who cannot get along, may wish to remain married but live apart. They may choose to enter into a legal separation agreement that will set out binding terms regarding children or financial matters. Sometimes married couples, who are living apart, enter into a legal separation agreement for a legal reason, such as to qualify for financial assistance, medical insurance or to become a foster parent. Sometimes a legal separation agreement is entered into because the married couple may not get along, but they aren't ready to divorce.
In New York, one of the grounds for divorce is having been legally separated for at least one year. Before New York had no-fault divorce, some married couples would choose this ground for divorce, since all other grounds for divorce assigned fault to one of the parties. Since New York now has no-fault divorce, couples no longer need to follow this route for a divorce, if they do not wish to use a fault ground.
To be legally binding, the separation agreement must meet certain requirements in form and language, especially when minor children are involved. The legal separation agreement must address all of the issues in a divorce, such as custody, child support, spousal support, and distribution of assets. Accordingly, agreeing to the terms of a legal separation agreement is often no easier than agreeing to the terms of a divorce.
When seeking a separation agreement, especially when minor children or financial issues are involved, each party should have an attorney. Although it is possible for only one of the parties to have an attorney, it is not advisable for either party. The party who does not have an attorney may not appreciate the impact of the terms of the agreement until later, when the party lacks the money to seek legal redress. The party who does have an attorney may later find the other party relying upon lack of counsel as the basis to invalidate the terms of the agreement.
Although not required, it is advisable to file the signed legal separation agreement with the county clerk. It may only be filed in the county in which a party resides. Filing the legal separation agreement will prevent anyone from making unauthorized changes and will avoid concern about the loss or destruction of the original legal separation agreement. If the original fully executed legal separation agreement is lost prior to filing, it may not be legally enforceable. In addition, a divorce based upon legal separation will not be possible.
To file the legal separation agreement, you much purchase an index number at a cost of $210 from the county clerk. Once the legal separation is filed, you should obtain a certified copy of it from the county clerk. The cost to certify the legal separation agreement is $8.
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, a certified copy of the legal separation agreement must be filed with the divorce petition.
If the original separation agreement is not filed with the county clerk, it may be filed any time prior to the commencement of the divorce action based upon legal separation. Once the divorce is granted, the terms of the legal separation agreement will be included in the judgment of divorce. If a subsequent divorce is commenced and not based upon the grounds of legal separation, the terms of the legal separation agreement may still 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 must 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, and 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 $226 ($210 for the index number and $16 for two certified copies of the legal separation agreement). Accordingly, the total fee is $976. Call us at (718) 625-0800 to schedule a free consultation.