Legal Separation Requirements in New York

Legal Separation Requirements in New York

legal separation

Over the years, many New York couples have decided on separation instead of a divorce. It can be a better decision for a variety of reasons, including: uncertainty about getting a divorce, personal or religious reasons, the desire to live separately but remain married, stay on your spouse’s health insurance, or file joint tax returns.  However, it is important to keep in mind that you are still legally married after obtaining a legal separation, and therefore you cannot remarry.

The legal separation can last eternally, lead to a reconciliation between the parties, or lead to a divorce. After one year has passed since signing, either party can approach the court to convert the legal separation to a divorce. Whatever the reason or outcome may be, this procedure is just as formal as acquiring a divorce as official disclosures and agreements come into play and it is essential to obtain the services of a Garden City family lawyer.

Two Ways to Obtain a Legal Separation

One way to become legally separated from your spouse is to file an action for separation. This process involves proceeding through court, basing the separation on grounds similar to those of a divorce. Also, the parties resolve any issues of the marriage similar to the way you would in a divorce. At the end, you will receive a Judgment of Separation ordered by the court.

The more common method of obtaining a legal separation is to enter into a separation agreement with your spouse. A separation agreement is a written contract that attempts to resolve many of the issues that are typically addressed in a divorce, such as child support and custody, spousal maintenance, and property division. This allows spouses to handle matters amicably, make their own decisions on these important matters, and avoid the court’s involvement.


If both you and your spouse are residents of New York State at the time of filing for the legal separation and the grounds for the separation arose in New York, then residency is satisfied. However, if that is not the case, you must meet one of the following requirements:

  • At least 1 of you has been living in New York State continuously for at least 2 years prior to filing.
  • At least 1 of you has been living in New York State continuously for at least 1 year prior to filing and you got married in New York State OR you lived in New York State when you were married, OR the grounds for separation occurred in New York State.

Drafting a Separation Agreement

A separation agreement handles many of the same issues that would be resolved in a divorce. This includes any issues pertaining to children of the marriage, if any, and would involve provisions for custody and parental access time, child support, and possibly college education and support. Both spouses must provide complete and comprehensive financial disclosures and have a fiduciary obligation to be fair and honest; if they do not submit full and comprehensive financial information, the contract may be invalidated later.

A separation agreement in New York can form part or all of a later divorce agreement, which is why it is crucial that both parties have legal representation and provide complete financial disclosure before signing. Even if a party contests the future divorce, the terms of the separation agreement, to the extent that they handle child-related and financial issues, would be legal. However, it is important to note that when parties sign a separation or divorce agreement that includes child-related provisions, the court always has the jurisdiction to modify or change those provisions of the contract at any time. The logic is that because the children were not parties to the agreement, the court has the authority to change any clauses that are not in their best interests. Following the completion of the separation agreement, one of the parents or the children can ask the court to change the parts dealing with the children, giving evidence to indicate why one or more contractual clauses are not in the children’s best interests.

How Garden City Lawyers Can Help

Some couples that separate in New York try to draft their agreement without the help of attorneys, believing it will save them time or money. However, the expense of hiring an attorney is worth it to ensure the best results for your family and the safety of your assets and finances. In addition, a separation agreement in New York must be completed with formalities that an attorney can help you satisfy. Also, attorneys can provide you with important information and advice, such as the fact that temporary reconciliation with your spouse could invalidate your separation agreement, depending on the provisions of your separation agreement. The family lawyers at Fass & Greenberg are highly skilled and experienced at legal separation issues and can help ensure that you make the best decisions to protect yourself throughout the process.

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