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?”

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.

In October of 2010, New York State finally adopted a No-Fault Divorce law, joining the other 49 states of the union. This was a long awaited and quite welcomed development for couples seeking an uncontested divorce.

Prior to October 2010, New York still required grounds for divorce but couples who wanted to get a divorce had several options if they wanted to file for an uncontested divorce. The most benign of the choices was to sign a Legal Separation Agreement and wait a minimum of one year following the signing of the Agreement to file for divorce.

If a couple wanted to obtain a divorce before the completion of that full year, one spouse would have to invoke grounds against the other, such as accusing them of abandonment or cruel and inhuman treatment. Basically, in order to justify the request for the divorce, one spouse had to accuse the other of something that wasn’t necessarily true.

Couples who chose mediation as a means for their separation and/or divorce and who wished to file for the divorce right away, found these choices distasteful, meaningless and upsetting. Having to use one of these grounds could potentially undermine the amicability they worked so hard to achieve in the mediation process. With the advent of the No Fault divorce in October 2010, spouses have been able to end their marriage and file for an Uncontested Divorce under the following scenarios:

• One spouse can say under oath (or via a signed and notarized affidavit) that the relationship with the other spouse has been irretrievably broken down for a period of at least six months, and;
• The spouses have resolved together all financial issues regarding Equitable Distribution of their marital property, Spousal Support, Health Insurance, and in the cases where they have children, child support, custody and a Parenting Agreement.

For couples going through the process of a separation or divorce, as well as those of us in the mediation and therapeutic community, the adoption of the No Fault law was welcome indeed.

Along with the myriad of benefits of choosing mediation over litigation, the No Fault law assists couples in determining their own future.