MARITAL AGREEMENTS
When you and your spouse separate, it is best to enter into a Separation Agreement. A separation agreement is a contract between you and your spouse that can include spousal support, child custody, visitation rights, and a division of the property acquired during the marriage. The agreement can be enforced by courts if one spouse does not comply. If the spouses later divorce, it may be included in the divorce judgment.
SEPARATION AGREEMENT
In New York, a Separation Agreement is a detailed contract which should be prepared by attorneys. In this agreement, the spouses agree to live separate for the rest of their lives. The agreement should contain the respective rights and duties of husband and wife with respect to the custody of children, visitation rights, support payments, distribution of property, and all other matters pertaining to the marital relationship
Certain vital formalities must be carefully followed, or the written agreement will not qualify as a ground for divorce.
The agreement, or a memorandum of separation, is filed (with complete confidentiality) with the Clerk of the County in New York where either spouse lives. At the end of 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 New York Court is that the agreement was duly executed and acknowledged and was properly filed; that the spouses have in fact lived apart during the period of the agreement up to the time of the divorce action; and that the Plaintiff has substantially complied with the terms of the separation agreement.
SEPARATION JUDGMENT
Another form of separation in New York is through a Judgment of Separation granted by the Supreme Court of the State of New York. This judgment is based on the same four "fault" grounds as for divorce. However, the abandonment may be for less than one year. In addition, "non-support" is a ground for a judgment of separation, although not for a judgment of divorce.
One year after the filing of the Court's judgment of separation, either spouse may sue for a "no-fault" divorce, based upon one year of living apart. In New York, a divorce does not occur automatically after a year. Court action must be taken.
