Often couples contemplating a divorce or separation agree to resolution of their disputes, including the issues of custody, child support, equitable distribution of marital assets and debts, before an action for divorce is commenced. This is done by a separation agreement.
The law encourages people with disputes to resolve them between themselves. Separation agreements serve this purpose. The courts are, however, available to assist those who are unable to reach agreement.
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Separation Agreements in New York
A separation agreement in New York must conform with certain legal formalities. Its terms must be fair and reasonable at the time the agreement is made and must not be unconscionable at the time of entry of a final judgment incorporating the terms of the agreement.
After the parties to a separation agreement in New York have lived apart, pursuant to its terms, for one or more years, either party may sue for divorce based upon those facts, provided the party seeking the divorce has substantially complied with the terms of the separation agreement.
New York State Legal Separation
A legal separation is the court process that functions as a means to clearly define the legal rights and legal obligations between spouses who seek to live apart. A legal separation can establish the following:
A separation action involves the same processes of filing papers with the court as to start a divorce action. At the end of the process, the parties are legally separated instead of being actually divorced. This means that they are still married but not responsible for each other and what the other party does, except as directed by the judgment of separation.
New York State law also allows a husband or wife to bring an Action for Separation. Although this type of action is now rarely seen, it provides a spouse with the opportunity to seek a judgment separating the parties from bed and board, forever, or for a limited time.
The Grounds for Separation are:
- The cruel and inhuman treatment of the complaining party by his or her spouse
- The abandonment of the complaining party by his or her spouse, although no particular duration of abandonment is required
- The refusal of one spouse to provide for the support of the complaining spouse
- Commission of an act of adultery; and
- Confinement of one spouse in prison for a period of three or more consecutive years after the marriage.