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What is a Separation Agreement?
In New York, a separation agreement or marital separation agreement, can and has been used as an alternative to divorce. This is because before 2010 and the advent of No-Fault Divorce, New York had the most restrictive divorce laws in New York.
A person actually had to prove marital fault at trial before a judge. And if trying to prove adultery, there was a jury trial. This made getting a divorce a very complicated and expensive procedure. The shortcut was to get a separation agreement and live under it for one year or more.
The separation agreement is a contract. That means is it a legally binding document drawn up between a married couple, in which both parties agree to live separately and apart.
The document is a very special contract that must contain legally required terms and clauses. It must also be notarized in a very special manner. A note handwritten on the kitchen table will NOT be enforceable and it is legally worthless.
Agreements by email or verbal are also worthless. Under the agreement has been reduced to a specific form and notarized in a very specific fashion, it will not be enforceable.
Additionally, the agreement is something that both people in the marriage use to formally divide their assets, debts, and other marital responsibilities so that each party experiences a fair separation from the other.
The agreement may address children’s issues, such as custody, visitation, and child support. While the court cannot alter any term or condition relating to property division, any provision relating to the children can always be revisited by the court for good cause.
Separation agreements in New York do not expire, people can live under them for years. A separation agreement is a contract. As long as it is properly drafted and notarized, it is valid no matter how many years have passed. But, it can be converted into a divorce after one year.
An often-asked question is “does a separation agreement have to be filed in court?” No, a separation agreement does not have to be filed in court to be valid or enforceable. However, it is a good idea to file it, in case it gets lost or is accidentally destroyed.
Before 2010, the Separation was the Path to Divorce
In 2010, New York became a No-Fault Divorce State.
Since 2010, New York has implemented No-fault divorce. This has largely eliminated the need for a separation agreement. Before No-Fault Divorce, a separation agreement was the easiest path to divorce.
Prior to 2010 the easiest path to divorce was to get the agreement.
Post 2010 – The No-Fault Divorce
When the law changed in 2010 allowing No-Fault divorce it became the easiest method of getting a divorce. Now, the issue is not should the parties be divorced and instead focuses on children issues and the division of property.
With no-fault divorce as an option we don’t need the agreement and they have fallen out of use. In other words, in most cases, the agreement to start the divorce really doesn’t serve any purpose.
Two Reasons to Use the Agreement Instead of Divorce
However, there are still instances where the agreement may be useful. Nowadays in New York, is not used as a step towards divorce, but rather when the parties want to separate but not get a divorce.
There are two very good reasons to get a separation and not a divorce. The first is on religious grounds –some people will not get a divorce because it is against their religion. For them, a Separation Agreement is the right move. Depending on the religion, religious divorces could be easy or difficult to obtain.
Under New York Law, parties to a divorce have to agree to take all steps in their power to remove religious barriers to the other’s remarriage. However, just because the parties agree to remove the barriers, doesn’t mean that their religion will allow them.
The other reason involves health insurance. Under federal law, once people are divorced they can no longer be on each other’s health insurance. In other words, once you are legally divorced, you can no longer be covered by your spouse’s health insurance. However, it is sometimes important that health insurance coverage is maintained after a divorce.
For example, consider a situation where the spouse has health/medical issues and receives coverage from their partner’s plan. It may be prudent that if possible, the spouse continues receiving coverage from their partner’s plan.
This is where a Separation Agreement comes into play. Under a Separation Agreement, the health insurance coverage can be continued, as long as the parties do not divorce in the future.
Pitfalls
There are pitfalls if you want to be separated but not divorced. While under the present law, a separation agreement is no longer the easiest path to divorce, but it is still a path. Even if you get an agreement because you don’t want to be divorced under New York law the agreement can be converted into a divorce after one year.
If one party’s intent is to live under the separation agreement for a number of years, then the agreement has to be drafted in such a way as to discourage the other spouse from converting it into a divorce. The agreement cannot on its face prevent the other party from converting it to a divorce. More subtle means have to be used.
Conclusion
Call Port and Sava at (516) 352-2999 to discuss your options to see whether a separation or divorce is the right choice for you. At Port and Sava, we help you get on with the rest of your life.
