New York Divorce Guide

Legal Separation

A legal separation in this state is Separationreferred to as a Divorce from Bed and Board. Either party can petition the court, either for a limited time or forever. The grounds for a Divorce from Bed and Board include:

  • The cruel and inhuman treatment of the plaintiff by the defendant
  • The abandonment of the plaintiff by the defendant
  • The neglect or refusal of the defendant-spouse to provide  for  the support of the plaintiff-spouse
  • The commission of an act of adultery by the defendant
  • The confinement of the defendant in prison for a period of three or more consecutive years. [NY Dom Rel L § 200]

In cases where the parties wish to reconcile, and there has been issued a decree of separation, the parties must petition the court to revoke the decree.

In New York, there is no means to file for a legal separation. Simply stated: If your spouse does not agree to a legal separation, or worse, you cannot find your spouse, you cannot get legally separated. Only if you both are in agreement can a legal separation occur. Further, you must present to the court a written Separation Agreement that includes details on who will pay the bills, where the children will live (if any), any and all child and spousal support payments that will be made, visitation by and for any children, and how the assets of the marriage will be divided.

Legal separation is frequently pursued when one of the parties wants to stay married for religious reasons, wants the advantage of deductibility of spousal support payments for income tax reasons, wants to maintain various insurance coverage’s, or do not want to wait the state statutory waiting period for termination of marital status.

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In order to get a legal separation, one of the following conditions must have occurred:

  • cruel and inhuman treatment that endangers your physical or mental well being
  • abandonment
  • neglect or refusal to provide for your support
  • the commission of an act of adultery
  • confinement of the defendant in prison for a period of three or more consecutive years

There is a a statute of limitations on behavior that would qualify as one of the grounds for divorce or separation. The actions and behaviors that would qualify as a ground must have occurred within five years of your filing the action. [210] Check the statute for the exceptions to this rule.

Residency Requirements
  • The marriage occurred in New York and one spouse has been a resident for one year just preceding the filing, or
  • Each have resided in this state as husband and wife and either is a resident when the filing occurred have been a resident for one year prior to the filing, or
  • The cause for the action occurred in the state and either has been a resident for one year prior to the filing, or
  • The cause for the action occurred in the state and both are residents at the time of filing, or
  • Either has been a resident of the state for two years prior to the filing

Q. What are the marriage separation choices in New York State and what do they mean?
Up until October of 2010, there were two types of marriage separation in New York. The first and by far the most common petition for separation was by both of you signing a legal separation agreement and living apart as per that agreement (and apart for more than one year). The Separation Agreement must have met certain requirements in form and language. The 2010 changes for filing a separation agreement appear to have been left unchanged, but the statutes now only require irretrievable breakdown of the marriage for at least six months. In a word, separating for a year in anticipation of a divorce is no longer possible.

Q. Can I file for Legal Separation in New York? How does the process go?
In New York, there is no means to file for a legal separation. Simply stated: If your spouse does not agree to a legal separation, or worse, you cannot find your spouse, you cannot get legally separated. Only if you both are in agreement can a legal separation occur. Further, you must present to the court a written Separation Agreement that includes details on who will pay the bills, where the children will live (if any), any and all child and spousal support payments that will be made, visitation by and for any children, and how the assets of the marriage will be divided.

Q. Why get a legal separation if a dissolution (divorce) will untangle the lives?
Legal separation is frequently pursued when one of the parties wants to stay married for religious reasons, wants the advantage of deductibility of spousal support payments for income tax reasons, wants to maintain various insurance coverage’s, or do not want to wait the state statutory waiting period for termination of marital status.

Q. What conduct or behavior qualifies as grounds for separation?
In order to get a legal separation, one of the following conditions must have occurred:

  • cruel and inhuman treatment that endangers your physical or mental well being
  • abandonment
  • neglect or refusal to provide for your support
  • the commission of an act of adultery
  • confinement of the defendant in prison for a period of three or more consecutive years

Q. I’m told there is a statute of limitations on behavior that would qualify as one of the grounds for divorce or separation?
You heard correctly, grasshopper. The actions and behaviors that would qualify as a ground must have occurred within five years of your filing the action. [210] Check the statute for the exceptions to this rule.

[Revised Statutes, DOM (Domestic Relations), Article 5, Section 72.]

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