Separation is the resolution of marital issues between spouses who
no longer intend to remain together, without legally terminating the
legal "marital" relationship. Separation can be established by mutual
agreement between spouses or by court determination.
A separation typically resolves all issues between spouses, in the
same fashion as if the parties were seeking a divorce. This includes
the fair and equitable allocation of all assets and obligations between
spouses and, where applicable, the payment of maintenance (formerly
known as "alimony") from one party to the other. Where children are
involved, this also includes the resolution of issues of custody,
visitation, residence, support, health care expenses, day care expenses
and education expenses of children.
In the case of a mutually agreeable separation, the parties need
only sign and acknowledge a "Separation Agreement" (or a legally
binding contractual agreement), in order to be legally separated. No
court appearances are required. This Agreement would encompass any and
all issues or concerns regarding the marital relationship of the
parties.
It is also possible to seek a determination from the court regarding
the terms and conditions of a separation. This is usually sought by a
party who wishes to be separated but does not wish to be divorced and
cannot reach a mutual agreement with his/her spouse. In New York, it
remains necessary to establish reasons or "grounds" for a Separation,
similar to the reasons or grounds required to establish the right to a
divorce.
While all separation cases share certain similarities, each case is
truly unique and each set of circumstances requires separate and
distinct consideration and evaluation. To discuss any issues or
questions with respect to a potential separation, please contact
Lawrence
J. Schwind.