Separation & Divorce
Separation and divorce involve the resolution of marital issues between spouses who no longer intend to remain together. A divorce results in the legal termination of the marriage whereas a separation does not. Both separation and divorce are established by mutual agreement between spouses or by court determination. If the parties are able to agree upon the terms of the termination of their relationship, they can reduce their understanding to a written agreement (generally referred to as a “separation agreement”), which encompasses any and all issues or concerns regarding the marital relationship of the parties.
Upon formal signing of a separation agreement, the parties are “legally separated.” No court appearances or other involvement of the court system are required at this time, and, if they wish to remain separated, nothing further is required. However, if the parties wish to become divorced, the terms of the separation agreement can become the terms of their divorce. Fundamentally, the parties would formally advise the Court that they wish to be divorced, but since they have reached an agreement, they do not require the court to determine the terms of their divorce.
If the parties are unable to agree upon the terms of the termination of their relationship, it is necessary to request the intervention of the court to reach a final resolution. This is done by starting a legal action for either separation or divorce.
Although it has not always been the case, New York now provides a “no-fault” divorce option, which allows either spouse to seek a divorce upon the assertion that “the relationship between husband and wife has broken down irretrievably for a period of at least six months.” There is no requirement that the parties agree that this is the case, so long as one party has made this assertion under oath. While New York continues to permit a “fault-based” divorce by making specific and detailed assertions that a spouse has committed acts or omissions sufficient to warrant a divorce, the “no-fault” option eliminates the necessity to do so. It also eliminates the need to be separated for a year before seeking a divorce as a means to avoid the assertion of fault-based grounds. Since “fault,” except in the most unusual of circumstances, will not have an impact on the division of property or the custody of children, many people prefer the no-fault approach to divorce.
If the parties wish to be separated and not divorced, but cannot agree on the terms of their separation, it remains necessary to establish fault-based reasons or “grounds” for a separation in New York, since there is not a no-fault option for separation.
While many separation and divorce cases share certain similarities, each case is truly unique and each set of circumstances requires separate and distinct consideration and evaluation. Our attorneys have the knowledge and experience to provide legal counsel on all issues between spouses.
Many of the terms and provisions that will typically need to be addressed, in connection with or following a separation or divorce (and which are discussed in other sections on our website), include:
- Custody issues and disputes
- Child support issues
- Visitation issues
- Spousal maintenance/alimony
- Property/Debt division
- Post-divorce enforcement and/or modifications
- Qualified Domestic Relations Orders (QDROs)
In addition, many people wish to consider dispute resolution alternatives when considering a separation or divorce, which are discussed on our Dispute Resolution Alternatives page.