THE BASICS
OF SEPARATION IN NEW YORK
What is a legal
separation?
First and
foremost a separation, by agreement or Court Order, is NOT a
divorce and does not automatically become a divorce. In New York if you live
apart pursuant to the terms of a Separation Agreement or decree for one year
or longer it will become an additional grounds for divorce. You can't marry
someone else if you are legally separated (and not divorced).
A legal separation must be
distinguished from a "trial separation" or just plain living apart. A legal
separation provides both structure during the period of separation and New
York's only true "no-fault" basis for a divorce should that be the path
ultimately selected by the husband or the wife.
Why separate and not
divorce?
A legal separation
is for couples that may be undecided about whether they will or will not
divorce but want to have certainty regarding money, property, and
parenting issues while they decide, for couple who may require medical
insurance for an otherwise uninsured spouse who chose to remain legally
married so that one spouse can continue to benefit from the insurance
coverage of the other, coverage but do not want to get divorced but want to
live apart and decide on and for couples sometimes prefer separation for
religious reasons.
A word of
caution is appropriate when speaking of separation agreements. All may
not always be as it appears. A spouse who does not have grounds to get a
divorce may be able to get their mate to agree to separate, even giving
a 'reasonable' agreement to do so. While on its face appearing fair they
will have gotten that which they otherwise could not have obtained and
will not have paid for the privilege. Similarly offers to mediate lead
to a similar end, frequently with results not as fair or reasonable. A
negotiating advantage should not be easily surrendered.
Keith, Shapiro & Ford has represented
clients in the negotiation of separation agreements for over 20 years.
The issues do not always present in a manner that makes their resolution
self-evident and it is only with the assistance of experienced
matrimonial counsel that a negotiating strategy can be developed that
will lead to the most beneficial end that a client may secure. We
offer free in-office consultations and welcome the opportunity to
discuss a contemplated separation with you, a friend or loved one.
Separation Agreements
Separation Agreements both define everyone's rights and obligations while
they live separate and apart but generally also provide that when there is
a divorce decree or other court order, the Agreement will be "incorporated
but not merged" into that Court Order. This means that the Separation
Agreement will both continue to stand as an agreement on its own and can
be enforced as a contract, but it will also become a part of a court
Judgment of Separation or Divorce which can be enforced in the same manner
as any other Order of the Court (through contempt of court proceedings).
Separation Agreements are binding, for both parties, except that
provisions involving the children, such as custody
and child support,
can always be changed by a court upon the demonstration of a change in
circumstances sufficient to allow the Court to review the issue.
Separation Agreements should be drafted by a lawyer (including a lawyer
who is serving as a mediator). If you do not have a lawyer, and the
Agreement was drafted by your spouse, your spouse's lawyer, or even by a
mediator or lawyer/mediator who was hired by both spouses, you should
always take any Agreement to a lawyer to have it reviewed before you sign
it.
