There are only two ways to become legally separated in New York State. The first and most common is for the spouses to enter into a separation agreement. The second, and rarely used, is for a judgment of separation to be granted by the court. Simply living apart does not make a couple legally separated, regardless of how long.
A separation agreement is a way for couples to resolve all of the issues of their marriage without going to court. If parties are able to reach an understanding and agreement with each other, we can draft a legally binding agreement containing all of the terms necessary to resolve all of the issues of the marriage.
For a separation agreement to be legally binding, it must meet certain requirements as to form, content and language, especially when minor children are involved. The separation agreement must address all of the issues in a divorce, like custody of the minor children, child support, spousal support, and equitable division of the assets. Additionally, strict rules govern the form of execution of the agreement which must be complied with to be binding and enforceable. One example requires that the agreement be executed in the same manner as is required for execution of a deed. A writing that does not conform to these strict requirements will not be enforceable.
When seeking a separation agreement, it advisable that each party have their own attorney, especially when minor children and financial issues are involved. It is possible for only one party to have an attorney to draw up the agreement, however it is extremely risky, for both parties. The unrepresented party may not come to realize the full weight of the terms of the agreement until after they find themselves bound by the terms of the agreement. A party may attempt to later set aside the agreement based upon the lack of having an attorney represent them during the negotiation and drafting of the agreement.
After your separation agreement is complete and fully executed by both parties, it is advisable to file it with the county clerk of your respective county. This is not required, but it is recommended to prevent anyone from making unauthorized changes and avoid the risk of it getting lost or destroyed.
The drafting of agreements between spouses is a complex and detailed undertaking. Our litigation experience provides us with the knowledge and foresight to make sure that agreements are written with binding and conclusive terms to provide the maximum protection our clients desire so that the settlements we reach on their behalf stand the test of time.