What is the process and grounds for filing for a legal separation in New York

There are two paths to a legal separation in New York – a voluntary separation agreement, and a separation judgment.  Both are complex processes requiring the assistance of an experienced family law attorney.

A New York voluntary separation agreement (“Memorandum of Separation”) has to be a detailed contract which should be prepared by attorneys – if all of the statutory requirements are not fulfilled, the written agreement will be qualify as a valid ground for divorce.  The agreement must contain the respective rights and duties of the ex-spouses with respect to the custody and visitation of children, child support payments, spousal support payments (if any), and the distribution of marital property.  The spouses must also agree to live separate for the rest of their lives.  The document is to be confidentially filed

with the clerk of either spouse’s county of residence.  One year from the date of the agreement, either spouse may sue the other for a “no-fault” divorce – all that must be proven to the family court is that the agreement was properly executed and filed, the spouses have in fact lived apart for at least that full year, and that the plaintiff has substantially complied with the agreement.  Note that a reconciliation voids the agreement, and that the divorce does not occur automatically after a year – court action must be taken.

If the spouses cannot agree to a voluntary separation, one can seek a “Judgment of Separation” granted by the Supreme Court of the State of New York.  The petition for a judgment of separation must be based on the same four fault grounds as for divorce –  cruel and inhuman treatment, abandonment for one or more years, imprisionment for at least three years, or adultery.  However, for a separation the period of desertion may be for less than one year. In addition, non-support is a ground for a judgment of separation, although not for a divorce.  As with a voluntary separation agreement, one year after the filing of the court‘s judgment of separation, either spouse may sue for a no-fault divorce if they have lived apart for one year.