What is a Separation Agreement?

A separation agreement is a private contract between a married couple in which you both voluntarily agree to live separately financially and physically. Within the agreement, parties can set forth with whom children will live, what happens to marital property such as your home or car, and anything else you and your spouse wish to include within the contract. Generally speaking, these agreements should contain all the terms that would go into a divorce and custody agreement. But, unlike filing for divorce, a separation agreement is a private agreement which need not be filed with the court. Should a couple choose to go this route, it is important to remember that one only becomes legally separated when both parties have signed the agreement before notaries. Once both parties have signed, the agreement becomes legally binding and the parties are required to abide by its terms.

What Goes Into a Separation Agreement?

Your separation agreement should be sure to detail:

• Child custody and visitation,

• Child support,

• Spousal support,

• Separation of assets and debts, and

• Spousal residences.

One year after the parties have entered into the agreement, they may wish to make the agreement permanent through divorce. In those cases, the next step is to file for a conversion of a written and acknowledged separation agreement pursuant to DRL 170.6. Conversion of a written and acknowledged separation agreement after living separate and apart for one year is one of the grounds for divorce in New York State. Prior to New York allowing parties to claim irretrievable breakdown of their marriage, separation agreements were a popular option to choose as a reason for divorce as the other options required the parties to assign blame, such as by asserting abandonment, infidelity, or cruel and inhuman treatment. Once New York started allowing couples to file for divorce without requiring spouses to point fingers at one another, separation agreements became less common.

Is a Separation Agreement the Right Option for Me?

Separation agreements are still a useful way for parties to test the waters of single living without formally filing for divorce. Separation agreements save time and money as they allow you and your spouse to set the pace and intensity at which you pursue an agreement rather than being forced to meet the court’s schedule. Whereas in divorce cases, you and your attorney (as well as your spouse and their attorney) may have to wait for hours to meet with a judge - a considerable expense - in entering into a separation agreement, meetings can start on time and at a time that is convenient for all involved. Removing a judge from the equation can also make coming to an agreement less confrontational, as it seems to lessen the perceived need for in-court theatrics which create unneeded animosity between parties.

There are also practical reasons for entering into a separation agreement rather than filing for divorce. Couples can still file joint tax returns, for example, and, sometimes one spouse may continue to remain on the other’s health insurance plan. Some may choose to pursue legal separation due to religious beliefs about divorce. Conversely, many view and use separation as a soft landing for divorce - something which allows their children to get used to the idea of their parents living apart without potentially involving them in court proceedings right away.

If you and your spouse are considering drafting and entering into a separation agreement, it is important that you treat it with the same amount of gravity as you would a divorce agreement, as your spouse may choose to file for a conversion divorce which, in effect, might turn your separation agreement into your divorce agreement. The party commencing the action must allege and prove that they substantially performed all the terms set forth in the agreement prior to the granting of a conversion of divorce. They also must assert that you both have been living separate and apart for more than one year; this means, if you and your spouse attempted to reconcile while a separation agreement was in place, it’s possible a court may deem it voided and not allow for a conversion divorce based on its terms.

Are There Residency Requirements for Legal Separation?

Not all states allow for legal separation, which makes New York an attractive option for couples entertaining separation. If you and your spouse are New York State residents at the time of filing and the grounds for the separation arose in New York, there are no residency requirements to file within the state. Otherwise, New York imposes the following requirements:

1. Either you or your partner or both have been living in New York continuously for at least two years prior to filing for separation; or

2. Either you or your partner or both have been living in New York continuously for at least one year prior to filing for separation and:

   • You got married in New York, or

   • You lived in New York when you were married, or

   • The grounds for separation occurred in New York.