Many people are confused about the term “separation” and exactly what that means. Many people refer to the word separation in an every-day context. For example, they consider a married couple to be separated if they live in separate bedrooms, live at separate residences, or agree to see other people romantically. However, legally, New York considers a married couple to be married until the marriage is nullified through annulment, separation, or divorce.
There are two ways for a couple to become legally separated in New York State. One way is to start a legal action and ask the Court to grant an Order, declaring the separation. This is uncommon. The most common method for a couple to separate is through a Separation Agreement.
With New York’s recent no-fault divorce statute, it is arguably just as easy to get a divorce as to get legally separated. Yet, it is very common still for married couples to choose separation over divorce. This can be for a number of reasons, which include:
A Separation Agreement is a contract between you and your spouse that determines the same issues that would be addressed if you were getting a divorce. These issues include child custody, visitation rights, child support, spousal maintenance (alimony), and the division of property. The Separation Agreement is binding on both parties can be enforced through the Court system. It is also suggested that the Separation Agreement be filed with the County Clerk. The Separation Agreement can be for a set length of time if that is what the parties wish. But most commonly, the Separation Agreement is without expiration and is eventually incorporated into a divorce judgment.
As mentioned above, if your spouse fails to comply with the terms and conditions of the Separation Agreement, you can go to Court and seek relief from a judge. In addition, the Separation Agreement can protect each spouse in various ways. For example, if either you or your spouse acquire property but do not have a Separation Agreement in place, then technically, the acquired property is marital and subject to division upon divorce. However, your Separation Agreement can set forth the understanding that any property acquired after the date of the Separation Agreement, will be the separate property of acquiring party. Moreover, if you do not have a Separation Agreement and your spouse incurs debt, you may be responsible for the debt of your spouse. Also, you should know that if you die without a Separation Agreement, your spouse can make a claim against your estate if you are still married. New York’s Trusts and Estates Law provides for a spouse’s right of election [they can insist on a portion of the estate regardless of what your Last Will and Testament indicates.
In all, if you intend to separate but not divorce, you should strongly consider entering into a Separation Agreement to protect your interests and your assets. Please call Danziger Legal PLLC and ask to speak to one of our attorneys about a Separation Agreement.