Frequently Asked Questions: Legal Separation
How can I obtain a legal separation?
There are two ways to become legally separated from your spouse:
(1) You and your spouse enter into a Separation Agreement. The agreement must contain certain language and be signed and acknowledged in a certain way in order to qualify as a Separation Agreement. You should not try to prepare your own Separation Agreement. The agreement must be carefully drafted so that it accurately reflects your intentions and is enforceable in the future. Please refer to the article by Clifford Petroske entitled Only One Bite at the Apple: The Nature of Settlement Agreements for a thorough discussion of settlement agreements.
(2) You obtain a Judgment of Separation. An action for separation proceeds in very much the same way as an action for divorce. Please see the Divorce FAQ’s for answers to questions regarding litigation procedure.
What are the grounds for separation in New York?
As in divorce, New York law requires that you have specific grounds to obtain a judgment of separation. The grounds for separation are:
(1) cruel and inhuman treatment
(3) failure to provide support
What can I do if my spouse does not abide the terms of our Separation Agreement?
A Separation Agreement is a contract, and it is enforceable in court just like any other contract. Often, a money judgment will be sought and entered against your spouse. At your consultation, we will determine the best way to proceed depending on which terms of the agreement your spouse has failed to obey.
What are the reasons to seek a legal separation instead of a divorce?
Many people want a legal separation because they have hopes of reconciliation and don’t want to end their marriage. Others enter into a separation agreement so that one spouse can remain covered under the other spouse’s health insurance policy. Since many medical plans allow coverage for spouses who remain married but are legally separated, in some cases using a legal separation instead of a divorce can save money by keeping both spouses on one medical plan.
What disadvantages are there to being legally separated, but still married?
There are numerous disadvantages to a legal separation, but the primary problem is enforcement. Divorce judgments are far more easily and effectively enforced than separation agreements standing alone. A judgment of divorce can be readily enforced by a relatively quick application to the court that issued it. Available remedies include contempt of court, which results in a fine and/or imprisonment; sequestration, by which the defaulting spouse must give up his accounts or other property as security for the payment of an obligation in the future; a money judgment, which can be enforced by restraint and/or seizure of accounts and other assets, as well as license forfeiture and income deduction order, to name a few. On the other hand, to enforce a separation agreement a whole separate lawsuit must be brought in which the breach is first proved at a full trial. Because a trial is involved, delays of several months or more can occur while the pleading and disclosure phases are completed. Assuming that the trial is successful, the court can only provide limited relief in the form of specific performance or an award of damages. If specific performance is granted, the court makes an order directing that the defaulting party do what the contract said they were supposed to do in the first place. If the defaulting party does not make the required performance, then the aggrieved spouse can employ the same remedies that are available to enforce a divorce judgment. In other words, the aggrieved spouse is back in the same place he/she would have been if he/she had simply started with a divorce judgment in the first place. Of course, the other remedy available for a separation agreement violation – getting a money judgment to compensate for contract damages — is readily enforceable, but it still takes longer to get such a money judgment than it would take if the defaulting spouse had violated a divorce judgment, instead of violating a separation agreement. Also, the number of situations in which a money judgment is the appropriate enforcement tool are limited. It works well, for example, if there is a particular asset that was supposed to be transferred but was not, but it does not work well with an ongoing obligation to pay child support or maintenance which would need a new money judgment each additional week that the defaulting spouse misses a payment.
How do I decide what is best for me?
After a thorough consultation with an experienced divorce attorney you will have a clear idea of what is best for you. In some cases, separation agreements are used to settle state Supreme Court divorce cases, with the understanding that collateral court orders can be obtained from the Family Court to help implement the support features of the separation agreement. Since every case is different, the option of a separation agreement can provide needed flexibility to help settle your divorce.