Home | Separation and Separation Agreements

An action for separation may be maintained by a husband or wife against the other party to the marriage to procure a judgment separating the parties for any of the following causes:

• The cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant.
• The abandonment of the plaintiff by the defendant.
• The neglect or refusal of the defendant-spouse to provide for the support of the plaintiff-spouse where the defendant-spouse is chargeable with such support under the provisions of section thirty-two of this chapter or of section four hundred twelve of the family court act.
• The commission of an act of adultery by the defendant; except where such offense is committed by the procurement or with the connivance of the plaintiff or where there is voluntary cohabitation of the parties with the knowledge of the offense or where action was not commenced within five years after the discovery by the plaintiff of the offense charged or where the plaintiff has also been guilty of adultery under such circumstances that the defendant would have been entitled, if innocent, to a divorce.
• The confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant.

Because a legal separation does not result in the dissolution of the marriage, the assets and liabilities of the marriage remain intact. While one spouse may be ordered to pay spousal support, equitable distribution is never decided by the court.

As distinguished from instituting an action for a separation, parties can voluntarily enter into a separation agreement to settle their respective financial and property rights as well as the care and custody of their unemancipated children.

Issues addressed in separation agreements include responsibility for marital debts, equitable distribution of marital property, spousal support, releases of estate rights, waivers of retirement income accounts and deferred compensation, child custody, visitation, child support, relocation, health and life insurance, counsel fees, defaults and breaches.

For those individuals who prefer the idea of procuring a separation instead of a divorce because they are undecided on whether they really wish to divorce, and feel that the other side does not have grounds for obtaining either a divorce or annulment, obtaining either a judgment of separation or executing a separation agreement may not be advisable. The reason is that the other spouse will be free to obtain a judgment of divorce one year after the execution of a separation agreement or judgment of separation. All the other spouse, who may not have been able to prove grounds for a divorce before this, will have to do is establish substantial compliance with the judgment of separation or separation agreement in order to prove grounds for their divorce.