What is a Legal Separation?

In order to have a “legal separation” you must have a written document, signed by the parties

What is a Legal Separation?

This is a common question and is often asked in the following ways: “My wife/husband moved out of the house about four months ago and we didn’t put anything in writing, is this a legal separation?” or “We think we want to do a trial separation – is this a legal separation?” or “My wife/husband is running up our credit cards and I’m concerned about my liability – do I have any and would a legal separation help?”

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To begin with, let’s address the question of a “trial separation.” When couples ask about this, they may be thinking of “trying” to separate for a period of time until they figure out whether they want to make the situation permanent of not. A “legal separation” or divorce is a written agreement that divides the assets and debts (which they have acquired during the marriage) and addresses all the issues about the children. Keep in mind that as long as the couple has not signed a written agreement, their marital status has not changed. In other words, you are still married under the eyes of the court and have all the requisite responsibilities of the marriage.

Therefore in order to have a “legal separation” you must have a written document, signed by the parties. This document is a legally enforceable contract that covers everything from custody of the children; child support; a parenting plan; maintenance (alimony), if appropriate; and the equitable distribution of all the assets and debts. It is a detailed document that outlines in detail all the issues that have been addressed, negotiated and resolved by the parties.

Should you decide to live under a Separation Agreement, it has to be for at least one year.

Because New York State requires that you have grounds for divorce, you have two options to pursue a separation or divorce. And one option is that you can live under the terms of a Separation Agreement for a minimum of one year and then file for an uncontested divorce on the grounds that you had lived under its terms for the required amount of time. Should you decide to live under a Separation Agreement, remember that it has to be for at least one year. You can’t change your mind in the middle of the year and try to file for the divorce. Once the Separation Agreement is filed with the County Clerk, you must wait out for the year to be up before you can file for an uncontested divorce.

Once the Separation Agreement has been filed and the year is up, it doesn’t mean that the divorce is final. It simply means that you have the option from that point forward to file the uncontested divorce. The procedure for filing the divorce papers will be detailed in an upcoming article entitled: Filing for the Divorce Right Away.

Once a couple has either mutually decided to live separately and apart, or in the case where one of the parties has moved out of the marital home, it is prudent to put things in writing so there is no longer an obligation to each other except for the issues that are spelled out in your legal, binding contract.