Why Do You Need a Lawyer for a Legal Separation Agreement in New York?
You and your spouse must have a written, signed, and notarized separation agreement to officially become legally separated. Separation agreements are contracts. They address complicated issues such as child custody, child support, alimony, and marital property division. A separation attorney will inform you of your rights and present you with options that fit your situation best. A separation attorney in Manhattan will also draft your agreement fully and add appropriate legal provisions.
The Differences Between Legal Separations, Annulments, and Divorces
Legal separation does not change your marital status. When you become legally separated, you are still legally married, and you cannot marry someone else. Legal separation is for people who cannot get divorced due to religious reasons or other financial circumstances. Some couples might want to stay married for healthcare or insurance benefits. A Manhattan separation attorney will explain that the grounds for legal separation are like that of an at-fault divorce; there must be the presence of either adultery, abandonment, imprisonment of your spouse for a period of three or more years, neglect, or inhumane treatment.
In New York, you can legally end a marriage through either divorce or annulment. For each, you will have to prove different facts. When you get an annulment, the Court is specifically declaring that the marriage is void. Annulments are generally harder to obtain than a divorce. If you are already legally separated and now wish to officially end your marriage, a separation attorney will advise you to file for a no-fault divorce, not an annulment.
When you get a divorce, you are acknowledging that the marriage was valid and want to terminate it. New York is a no-fault divorce state, meaning that you do not have to prove the reason you want to get divorced other than letting the court know that the marriage between you and your spouse has not functioned or has been irretrievably broken for a period of at least six months. There are other grounds for a divorce such as adultery, inhumane treatment, abandonment and/or imprisonment of your spouse for three or more years. But a no-fault divorce is by far the simplest way to end your marriage.
Grounds for Legal Separation in NY
The grounds for legal separation in New York are like the grounds for an at-fault divorce:
- Cruel and Inhuman treatment: The Court will assess whether one spouse abused the other either physically or mentally during the marriage;
- Abandonment: One spouse must have abandoned the other;
- Neglect or Refusal to Support: The Court must find that one spouse refused or neglected to support the other where the neglect spouse is chargeable with such support;
- Adultery: The spouse must prove that the other committed adultery during the marriage; and
- Imprisonment: One spouse must have been in prison for three or more years in a row after the marriage began.
- Divorce after a legal separation agreement: You may seek a divorce one year after you and your spouse have signed a valid separation agreement and have lived apart for one year; and,
- Divorce after a judgement of separation: You may seek a divorce if the Supreme Court has drafted a judgement of separation and after you and your spouse have lived apart for one year. (Domestic Relations Law section 170)
To qualify for a legal separation in New York, you must also meet the State’s residency requirements, meaning:
- Either you or your spouse has been living in New York for at least two years continuously before filing an action for separation; or
- The parties lived in this state as husband and wife and either party is a New York resident when the action is commenced and has been a New York resident for a continuous period of one year immediately preceding, or
- The reason for your separation action occurred in New York and either party has been a New York resident for a continuous period of at least one year immediately before the separation action is commenced, or
- The reason for your separation action occurred in New York and both you and your spouse are residents of New York at the time of the commencement of the action, or
- Either you or your spouse has been a resident of the State of New York for a continuous period of at least two years immediately preceding the commencement of the action. (Domestic Relations Law section 230).
What is a Separation Agreement?
A New York separation agreement is a contract between you and your spouse, in which you set agreeable terms in writing. New York separation agreements can contain provisions for living separately, custody and visitation arrangements, what happens to marital property (real estate, pensions, debts), or anything else both you and your spouse wish to include.
If your spouse does not agree to the New York separation agreement and refuses to sign and notarize it, then your agreement is not valid, and the Court will not enforce its terms. Once a New York separation agreement is signed and notarized, the agreement becomes legally binding.
What is in a New York Separation Agreement?
Like settlement agreements in divorces, separation agreements for legal separations can include provisions for:
- Alimony or Spousal Maintenance: Paying alimony restricts possible unjust fiscal impacts of separation by providing stable support to the less-monied spouse. This ensures the less-monied spouse can maintain their standard of living until they reach a time where they can support themselves. You and your spouse may decide on alimony together or rely on the Court maintenance calculator to determine the alimony amount.
- Child Support: Child support is money paid by a parent to pay for a child’s needs. Child support covers basic expenses as well as childcare, education, healthcare, and other expenses. Generally, the non-custodial parent will pay child support to the custodial parent. An attorney will typically use a standard formula to determine what the parent should pay. The amount paid is based on how much the parties earn in a year and on the number of children involved. If both parties agree on the amount to be paid for child support, they can select to waive the standard formula.
- Child Custody and Visitation: Neither parent in New York State has an automatic nor preferred right to custody of their child. In other words, the child’s mother does not have a greater right to custody than the father. Visitation rights or parenting time gives the non-custodial parent the ability to see the child on a regular, consistent basis.
- Property Division: Marital property and debt you and your spouse acquired during your marriage is divided equitably in your separation agreement. This does not mean an even or 50-50 split between all your property. It means that you and your spouse’s individual financial circumstances are to be considered when dividing property.
How Do You Start the Legal Separation Process?
The steps for legal separation are similar to actions for a divorce or annulment in that your separation attorney will commence a court case with a Summons and Complaint demanding legal separation. If you or your spouse agree on the terms of your separation, then your separation attorney will draft an agreement with all the terms you and your partner agreed to or want in the agreement. Once you have signed and notarized your agreement, your legal separation attorney will present the agreement to the Court and will request for a judgment of separation.
Couples who are legally separated may wish to later file for divorce. One year after the date of signing and notarizing the separation agreement, either you or your spouse can file for a divorce. If you already had a separation lawsuit, then you will convert that suit to a divorce case. This is called a “conversion”.
Can I Contest my Separation Agreement?
Yes, but it is exceedingly difficult. Separation Agreements are presumed to be valid. Thus, before you sign an agreement, you should read it fully and make sure you understand all terms and implications.
Here are some reasons your separation attorney might raise to a judge to set your separation agreement aside:
- Fraud: You or your spouse failed to truthfully disclose assets and debts.
- Coercion/duress: You or your spouse used pressure to get the agreement signed, or one of you were not given enough time to consider the agreement.
- Unfair and Inequitable: The separation agreement favors one spouse significantly more than the other, leaving one spouse with little to nothing.
The Court will deem the agreement unenforceable if there was presence of any fraud, coercion, or unfairness.
Contact Legal Separation Lawyers at Stepanian Law Firm for Peace of Mind
If you are not ready to file for a divorce, contact our experienced separation attorneys to learn more about how a legal separation could be the right fit for you. Separation agreements are likewise legally-binding contracts, which is a necessary component for legal separations. It is best to work with a legal separation lawyer who can inform you of your rights and ensure your benefits. Call us at (646) 596-6874 today or contact our Manhattan separation attorneys online.