Legal Separation in New York – The Difference Between Separation Agreements and Separation Decrees

New York is widely known as a state with domestic relations laws that are complex, confusing, and anachronistic. This article will seek to clarify the considerable confusion that exists regarding the meaning of the term “legal separation” and the distinction between separation agreements and separation decrees.

The term “separation” used to describe both separation agreements and separation decrees. Despite the identical terminology, they are different mechanisms. Concisely stated, the distinction is as follows: Separation Agreements are contracts which may be entered into by any married couple to memorialize their intention to live apart from one another and their agreement regarding financial issues, whereas separation proceedings are lawsuits, which must be based on one of the grounds enumerated in the NY Domestic Relations Law (“DRL”) § 200.

An action for legal separation is commenced by filing a summons and complaint in the Supreme Court, which is the New York court with jurisdiction to adjudicate matrimonial matters. As with divorce, an action for legal separation should be commenced in the New York county in which either you or your spouse resides. The legal grounds that a plaintiff must establish to get judgment of separation under New York law are set forth in DRL § 200, and they are summarized as follows:

The cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant.
Abandonment of the plaintiff by the defendant.
The neglect or refusal of the defendant-spouse to provide for the support of the plaintiff-spouse where the defendant-spouse is chargeable with such support.
The commission of an act of adultery by the defendant; except where such offense is committed by the procurement or with the connivance of the plaintiff or where there is voluntary cohabitation of the parties with the knowledge of the offense or where action was not commenced within five years after the discovery by the plaintiff of the offense charged or where the plaintiff has also been guilty of adultery
The confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant.

In contrast, no “grounds” are required to enter into a valid separation agreement. Further, although separation agreements may (and frequently are) filed with the Supreme Court, such filing is not essential one of the parties seeks to commence a New York divorce action based on the separation agreement. If the parties reside separately and apart from each other for a period of at least one year following the execution of the Separation Agreement, they may be able to obtain a “conversion divorce” under New York’s DRL § 170 (6). Regardless of whether the parties live separately and apart from each other, their agreement may be enforced pursuant to § DRL 236 B(3).

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