Legal Question in Family Law in New York

Re: do both parties have to agree in order to file for a NY Separation Agreements

Yes, there has to be an Agreement of Separation between the parties; you both have to agree to the terms of the Agreement.

Re: do both parties have to agree in order to file for a NY Separation Agreements

One spouse CAN get a separation EVEN WITHOUT the other spouse's agreeing.

However, this would NOT be by means of a separation agreement, but, rather, by court action, by obtaining a JUDGMENT OF SEPARATION from the courts. This can be done by obtaining the standard documents filed for a

New York State divorce from any of various purveyors, including divorce kits available on this LawGuru website and SUBSTITUTING the word SEPARATION instead of the word DIVORCE when filling out all such documents.

The problem is that you must cite a GROUND for DIVORCE (as I will detail bleow) wihen suing for a court JUDGMENT OF SEPARATION (unlike a spearation agreement which does not need any grounds). If you do have GROUNDS for a SEPARATION, then most of them would also suffice for DIVORCE, and it might make as much sense to immediately start divorce proceedings instead of separation proceedings if you have the grounds.

Note that if you do obtain a JUDGMENT OF SEPARATION from the new York State courts (or, if your spouse had agreed to a SEPARATION AGREEMENT), that, in and of itself, is sufficient grounds for divorce a year after you and your spouse have lived apart and spearate subject to such JUDGMENT OF SPEARATION (or by separation agreement).

Of course, Ms. Tanya Gendelman correctly tells you that you cannot have a separation AGREEMENT without the other spouse's cooperation, since any agreement needs both parties. However, in New York, separation can EITHER be by AGREEEMENT with neither spouse accused of any fault, OR, LIKE DIVORCE, by court proceeding in which the spouse suing for separation must accuse the other spouse of GROUNDS for SEPARATION.

The five GROUNDS for SEPARATION in Mew York are:

1. Spouse's Failure to Support

2. Cruel And Inhuman Treatment

3. Other spouse's Abandonment

4. Other spouse's Adultery

5. Other spouse's Imprisonment

Note that some attorneys claim that, at least in divorce cases, Cruel And Inhuman treatment is the most frequently cited ground for divorce.

Cruel And Inhuman Treatment can consist of the other spouse's infliction of either physical and/or emotional or mental cruelty to an extent that makes it improper or unsafe for the other spouse to continue to live with you. For example, perhaps the other spouse was not affectionate, or constantly started arguing with you, or called you names, etc.

Note also that for SEPARATION, you can cite ABANDONMENT as a ground for SEPARATION IMMEDIATELY AFTER the other spouse leaves your residence with NO INTENT to RETURN. (By comparison, for DIVORCE, ABANDONMENT can only be cited as a ground for divorce after the other party has abandoned for an entire year despite the abandoned spouse's continuous requests that the other party's return.)