What to Know About Legal Separation in New York

Some couples prefer a trial separation period before they get divorced, or get separated as a matter of convenience and comfort while the divorce process is going. The majority of separations that occur are unofficial—one spouse simply moves away from the family home, but no legal process occurs to make the separation official.

However, there is a process for creating an “official” legal separation in New York. This parties would enter into a written agreement which provides for the equitable distribution of asset, support, custody among other related issues. If a party wants the separation to be a Court Order, they must have least one of the following grounds:

• Cruel or inhuman treatment by one spouse, endangering the physical or mental wellbeing of that spouse and making it unsafe for them to continue to cohabitate
• Adultery within the last five years, committed “without the procurement or connivance” of the plaintiff, and the plaintiff must not have continued to voluntarily cohabitate with the defendant after learning of the adultery or have committed adultery of their own
• Neglect or refusal of one spouse to provide for the support of the other
• Abandonment which can be actual or constructive
• Confinement of one spouse in prison for at least three consecutive years after marriage

Most couples who seek a Judgment of Separation utilize the grounds of Abandonment. This is commonly done on consent of both parties.

Legal separation agreements are very similar to stipulations of settlements in divorce actions in that they will contain information about who is responsible for which types of payments and tasks, and what sort of custody arrangements the couple will follow if they have children. The agreement is only revocable if the parties enter into a formal agreement that vacates the separation agreement.  The mere reconciliation of parties in the absence of a further agreement does not invalidate the terms of a separation agreement.

If you are interested in learning more about how to establish a legal separation in New York and what the benefits of doing so are, contact an experienced divorce attorney at Jakubowski, Robertson, Maffei, Goldsmith & Tartaglia, LLP with any questions you have.