Some people who are experiencing marital difficulty wish to separate from their spouse for a period of time but are not certain they want to be divorced. In these cases, a separation may be appropriate.
Often, separated spouses negotiate and execute a written agreement setting forth all of the terms of their separation, which can include all aspects of child custody, support, spousal maintenance, and the distribution of marital property.
In those instances where you and your spouse cannot agree on the terms of an agreement, one spouse commences an action for a separation in Court. In that action, the Court has the authority to enter temporary and permanent orders for separation, custody, visitation, child support, and spousal maintenance.
However, the Court has no authority to make any order regarding marital assets and debts in a separation action. The Court can only deal with marital assets or debts in a divorce case.
Once you have decided to separate from your spouse, you need many resources. I can help you with your legal needs, but you may also need the help of other professionals, such as a therapist for you or your children, and/or a financial counselor to help you adjust to economic transitions and challenges. Be sure that if you do decide to separate, you plan for your legal, emotional and financial needs, and those of your children.
If you would like to schedule an appointment for a free initial consultation concerning a separation, please contact us.
If you would like more information about the law and practice of obtaining a separation, please continue reading.
What are the Legal Requirements for a Separation?
In order to obtain a separation in New York, you must satisfy two (2) criteria: residency and grounds.
Residency: You must demonstrate to the Court that your case fits within one of the following scenarios:
- You have resided in New York for the two (2) years immediately prior to the commencement of your case.
- Your spouse has resided in New York for the two (2) years immediately prior to the commencement of your case.
- You were married in New York and have resided in New York for one (1) year immediately prior to the commencement of your case.
- Your were married in New York and your spouse has resided in New York for one (1) year immediately prior to the commencement of your case.
- You have resided in New York as husband and wife and you have lived her for one (1) year immediately prior to the commencement of your case.
- You have resided in New York as husband and wife and your spouse has lived here for one (1) year immediately prior to the commencement of your case.
- The grounds for your separation occurred in New York and either you or your spouse have lived here for one (1) year immediately prior to the commencement of your case.
Grounds: You must demonstrate that your case fits within one of the following scenarios, or your spouse must agree that one of these scenarios applies to your case:
- Abandonment: There are two (2) types of abandonment, physical and constructive. Physical abandonment means your spouse has actually left you without your consent. Constructive abandonment means that your spouse has refused to have marital relations with you, despite your requests to do so and a lack of any physical or mental for not doing so.
- Adultery: An act of adultery within the five years immediately prior to the commencement of you separation, provided you did not condone or forgive your spouse. This ground requires either an admission by your spouse or independent evidence from a witness other than you.
- Cruel and Inhuman Treatment: A course of conduct consisting of either physical or emotional mistreatment which is so harmful to you that it is not safe or improper for you to remain married to your spouse. The longer the marriage, the greater the burden of proof the Court will require to satisfy this ground.
- Confinement in a Prison: This ground can only be used where your spouse has actually been in prison for three (3) consecutive years prior to the commencement of the divorce action.
- Failure to Support: Your spouse has refused or neglected to provide for your financial support.
What is the Process for Obtaining A Separation?
The first step in the separation process is to retain an attorney. Once that is completed, the following sequence of events usually occurs:
Filing of Summons and Complaint: The Summons and Complaint identifies the parties to the separation, and specifies the grounds for the separation and the facts which justify the separation.
- Summons and Complaint Served on Spouse: This must be accomplished within 120 days of the filing of the summons and complaint.
- Answer to Summons and Complaint: Your spouse must answer the claims made in the summons and complaint within 20 days of the date he or she was served with the document.
- Preliminary Conference: An initial meeting with the Court to discuss the case and develop a schedule for the exchange of documents and information, and to determine what issues can be resolved by agreement early in the case.
- Compliance Conference: Follow up meetings with the Court to determine the status of the case, monitor the exchange of documents and information, and resolve any pressing issues from time to time.
- Discovery: The exchange of documents and information. This also includes depositions, and the review of various records and documents received from third-parties, such as banks, credit card companies, and businesses.
- Trial: After discovery has been completed and the parties cannot resolve their differences, the Court will schedule a trial date. After the trial, the Court will render a written decision on all aspects of your case.
What Happens to Children During the Separation Process?
While the separation case is ongoing, the Court has the authority to issue any temporary order it deems appropriate for the benefit of a child. These orders typically include temporary custody, temporary visitation, the appointment of an attorney for the child, and directions for the child to be financially supported.
What Happens to Our Finances During the Divorce Process?
While a divorce is pending, the Court has the authority to issue any temporary order it deems appropriate in the area of spousal maintenance. It does not have the authority to make any order concerning marital assets or debts. These orders typically include directions for child support, temporary spousal maintenance, and health insurance payments.
What Happens if My Spouse and I Wish to Settle the Case?
The overwhelming majority of separation cases in New York are eventually resolved without a trial. When the parties finally resolve their differences, their attorneys prepare a written agreement which includes all of the terms of the settlement. The attorneys then draft a series of documents based on the contents of the agreement, and submit those papers to the Court. When all of the papers are reviewed by the Court and found to be in order, the Court signs a Judgment of Separation. Once the Court signs that document, the parties are officially separated.
What Happens if My Spouse and I Cannot Settle the Case?
If you are unable to resolve your differences with your spouse, your case will proceed to a trial. In New York, almost all separation cases are decided by judges. However, you do have the right to have the question of whether or not you or your spouse has legal grounds for a separation decided by a jury. All other aspects of your case, such as custody, visitation, and spousal maintenance will be decided by a judge under all circumstances.
If your case proceeds to trial, the Court will issue a written opinion deciding every aspect of the case. Once the Court renders its decision, either party may file an appeal.