Legal Question in Family Law in New York

Re: sereration vs divorce

New York is the only state in the nation in which there is no "no fault" divorce - you have to have one of the specified grounds for divorce which are set forth in the Domestic Relations Law. See http://www.browdelaw.info/7.html for details.

One of the grounds on which a divorce can be based is that a couple has been living apart under a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment.

Thus, a separation is a step towards a divorce, but is not a divorce. If you'd like to discuss your case, please feel free to get in touch.

Re: sereration vs divorce

In a separation you are still legally married. You can reconcile at any time OR.... after living apart, according to a properly written sep agreement, after 1 year either of you can file for divorce based on same.

If you can work out the sep agreement and wait the 1 year to file for divorce it is usually ALOT less expensive too.

I am finding that some couples are entering into separation agreements in order for 1 spouse to stay on family health insurance plan of other spouse for a period of time.

Re: sereration vs divorce

EQUITABLE DISTRIBUTION of property is ONLY done in a DIVORCE, NOT with a separation; the spouses remain married in a separation and therefore the property is NOT equitably divided between them during the duration of a separation.

The issue of property is a primary practical difference between separation and divorce; another difference are the GROUNDS for separation by court-ordered decree as compared to the GROUNDS for DIVORCE. The four grounds of

(1)ADULTERY; (2) ABANDONMENT;

(3) IMPRISONMENT of a`spouse (for more than three years in the case of divorce) ; and, (4) CRUEL AND INHUMAN TREATMENT, can EACH be cited as a ground for EITHER divorce OR for separation; however, spouse's

FAILURE TO SUPPORT the other spouse is ONLY grounds for SEPARATION. Another issue is that of FAULT, of the necessity to cite grounds and assign fault. Grounds for separation must be cited to obtain a SEPARATION by decree of COURT order which is based on showing FAULT of a spouse as is DIVORCE; HOWEVER, UNLIKE in the`case of DIVORCE, SEPARATION can also be done by a NO-FAULT VOLUNTARY written separation AGREEMENT between the spouses WITHOUT citing grounds.

The couple can obtain a divorce by living apart and separate for at least one year in accordance with either a court-ordered separation decree, or a written separation agreement. The preceding responding attoreys pretty much cover any other important issues raised by your question.