To obtain a divorce in New York, fault must be assigned to either the husband or wife, except when the divorce is based upon the ground of legal separation. Accordingly, some married couples wish to become legally separated so that they may divorce without assigning fault to either party. It is important to note that simply living apart is not enough to be legally separated; there must be a valid written legal separation agreement.

      There are two ways to become legally separated in New York. The first, and by far the most common way, is by having both the husband and wife sign a separation agreement. In signing a separation agreement, the agreement must have specifically required language and the signatures must be notarized. The agreement should contain the terms of how financial, retirement accounts and property issues are to be resolved.  In addition, if there are children involved, the agreement should contain the terms of custody, visitation, child support, medical insurance coverage, and all other related issues.

      It is advisable for each party to be represented by an attorney in the preparation of a legal separation agreement. Although it is possible for one party to have his or her own attorney and the other spouse to be pro se, such a situation is not advisable. If one party does not have his or her own attorney, that party may later try to invalidate the legal separation agreement due to the fact that he or she did not have the benefit of his or her own independent attorney. Although it is not a requirement that a legal separation agreement be filed with the county clerk, it is a good idea to do so. Each party should be given a copy of the legal separation agreement certified by the county clerk.

      A divorce based upon legal separation is not automatic. After being legally separated for at least one year, either party can commence an action for divorce based upon being legally separated.  In order to initiate the action for divorce, a certified copy of the legal separation agreement is needed. In order to be granted a divorce based upon the grounds of legal separation, the parties to the agreement must have lived apart for at least the previous year and have substantially complied with the terms of the agreement. The terms of the legal separation agreement are usually incorporated into the Judgment of Divorce.

      The second and much less common way to become legally separated is by obtaining a judgment of separation. To do this, a spouse needs to bring an action. The grounds for starting an action for separation are the same grounds as for a divorce, except in the case of abandonment, which can be for a period of less than one year for a judgment of separation. In addition, an action for separation for non-support can be commenced. Similar to being separated pursuant to a separation agreement, divorce is not automatic a year after the judgment of separation is issued. After being legally separated pursuant to a judgment of separation, either party can commence the divorce action based upon the judgment of separation.

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