Divorce Attorney: Long Island

There are two methods for obtaining a legal separation. The most common is by separation agreement. The other is by obtaining a separation judgment in court. Simply living apart is not recognized as a legal separation.

Separation agreements are the most common method for obtaining a legal separation. They are contracts by which spouses agree on the terms by which they separate. They are negotiated between the parties, each side may have their own attorney. They are agreements: your spouse cannot be compelled to sign a separation agreement. Both sides must willingly enter into a separation agreement. Although a court will not throw out a separation agreement because one side later feels it is unfair, courts may throw out a separation agreement where one side proves they signed the agreement due to fraud, coercion or undue influence. What may constitute "fraud, coercion or undue influence" varies greatly from case to case, consult an attorney to evaluate your agreement. To avoid having a separation later invalidated by a court, it is important to have a lawyer’s advice in negotiating a separation agreement, and to have a lawyer supervise the technicalities of the signing of the separation agreement. If the techicnal requirements are not met, the agreement will not hold up in court.

All of the terms that would be involved in a contested divorce can be addressed in a separation agreement. These include the custody and visitation of children, child support, spousal support (maintenance), the division of property, and attorney fees.

Separation can also be obtained by a court action. An action for separation is similar to an action for divorce, and follows much of the same procedures. In a separation action, the court determines whether to grant a separation based upon grounds, which are similar to those in a divorce: (1) cruel and inhuman treatment, such that the defendant’s conduct so endangers the physical or mental well being of the plaintiff and renders it unsafe or improper for the plaintiff to cohabit with the defendant; or (2) abandonment; or (3) the refusal of the spouse to provide support where chargeable; or (4) adultery; or (5) confinement in prison for three consecutive years after the marriage. The court also can award child custody and visitation, child support, spousal maintenance, orders of protection and attorney fees. Unlike in a divorce case, the court in a separation action has limited authority over the division of the couple’s property. Also, although legally separated, the couple remains husband and wife after a judgment of separation, and continues married until the parties subsequently start a divorce action. The parties cannot remarry after a judicial separation until they take the second step of obtaining a legal divorce.

It is not legally required to take the second step after legally separating and seek a divorce, some people live out their lives “legally” separated but still married.

Couples who simply live apart are not legally separated, and so potentially continue to build up marital property and debts. Importantly, rights in each other ‘s estates may continue, although people had lived apart for years, where no legal separation or divorce was obtained.