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New York Legal Separation
Legal Separation in New York

New York allows married couples to file for a legal separation. A legal separation is an alternative to filing for a divorce when spouses no longer wish to live together. Most of the issues that can be settled in a divorce are settled in a legal separation. Unlike a divorce, however, at the end of a legal separation the parties are still legally married and they are not legally able to remarry.

When spouses separate in New York, they can enter into a Separation Agreement, a contract between them that spells out spousal support, child custody, visitation rights, and a division of the marital property. This can be enforced by courts if one spouse does not comply, and it may be included in the divorce judgment if the spouses later divorce.

In New York, a Separation Agreement is a detailed contract usually prepared by attorneys. In this agreement, the spouses agree to live separate, and it usually stipulates the rights and duties of husband and wife in connection with child custody and visitation, support, and distribution of assets and liabilities. The agreement, or a memorandum of separation, is filed with the Clerk of the County in New York where either spouse lives. At the end of one year from the date of the agreement, either spouse may petition for a no-fault divorce.

In legal terms, separation means that the husband and wife do not live in the same household. The separation agreement is the legal document that states the terms of the separation. It must be voluntary and signed by both parties in front of a notary. In separation by agreement, the spouses make decisions about property, finances, insurances, child custody and visitation, and monetary support. The legal date of separation begins on the date the document is signed and notarized. After one year, if the separation agreement terms were substantially followed, either the husband or wife may file for divorce.

Separation Agreement

A separation agreement is a legal binding contract signed by spouses, which is intended to resolve property, debt and child related issues. This can be a very complex and detailed document depending upon the unique situation of the marriage. Many spouses consult an attorney to provide this or they decide to prepare their own.

Complaint

The complaint for legal separation includes a summons. The complaint includes the full names and birth dates of plaintiff, the defendant and all minor children of the marriage, the dates of marriage and separation, the grounds for the separation, a statement regarding residency and a brief description of remedies sought.

Grounds

The grounds for legal separation (separation from bed and board) in New York are: adultery, abandonment, imprisonment for three or more consecutive years, neglect of and failure to provide support for a wife, cruel and inhuman treatment. Another form of separation in New York is through a Judgment of Separation granted by the Supreme Court of the State of New York. This judgment is based on the same four "fault" grounds as for divorce. However, the abandonment may be for less than one year. In addition, "non-support" is a ground for a judgment of separation, although not for a judgment of divorce. One year after the filing of the Court's judgment of separation, either spouse may sue for a "no-fault" divorce, based upon one year of living apart. In New York, a divorce does not occur automatically after a year. Court action must be taken.

Residency

If only 1 spouse resides in New York at the time of filing the legal separation, the residency requirement is two years. However, the requirement is reduced to 1 year if (1) the spouses were married in New York and either spouse is still a resident; 2) they once resided in New York and either spouse is still a resident; 3) the grounds for legal separation arose in New York.

In addition, there is no residency time limit requirement if both of the spouses were residents of New York at the time of filing the legal separation and the grounds for legal separation arose in New York, according to the Consolidated Laws of New York Annotated; Domestic Relations Law, Article 11, Sections 200, 230, and 231.

Initial Procedure

The defendant spouse must be served the summons to notify him or her that a complaint for separation has been filed. In New York, service must be effected by personal service. This means someone must personally hand the defendant the complaint.

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