How to file for legal separation in New York

When a marriage is official, what is least expected is the end of it; however, a separation can happen due to different reasons. Usually, this is not a simple process, so it’s normal to ask yourself: What should I do?

If both parties have already decided that they don’t want to be together, the may consider applying for a legal separation, in which the couple can separate their assets (such as: housing, debts, child custody, etc.) but basically remaining married.

Bellow, you’ll find more specific information to make a decision.

Difference between a legal separation and divorce

If the couple ends their relationship in amicable conditions and are willing to make an agreement, they could consider a legal separation before thinking of a divorce, since they can negotiate the same issues in both procedures.

The main difference is that, with a separation, both parties remain legally married and cannot remarry later (together).

Couples who choose this option do it for legal reasons such as: qualifying for financial assistance, health insurance, or other benefits where a marriage is required.

How to get separated in NY

If you live in New York and don’t want to stay married, you can do it in two ways: by writing a Separation Agreement or by filing a Complaint for Judgement of Separation to the Supreme Court.

How to make a Separation Agreement

This happens when there is a mutual agreement between the spouses to be separated and negotiate their assets. But, before starting the paperwork, certain conditions must be fulfilled:

  • Both must agree with the decision.
  • The couple must have gotten married in New York.
  • They must have lived in New York as a couple for at least one year.
  • Either of them must be a New York resident for at least two years before requesting the separation.
  • And they must choose the court corresponding to the county where they both reside.

Writing the document

The court doesn’t provide any application form for this procedure. It’s a detailed document written between both parties, and, in some cases, they can ask a lawyer for help.

However, if you want to do it on your own, you can read more here: How to get a legal separation without a lawyer.

  • It must include basic information such as the date of marriage, number of children, shared assets, and so on.
  • You must clearly and explicitly explain the reasons for the separation, the individual, and the shared responsibilities of each spouse and any other agreement. For example, if you are going to discuss child custody, you should indicate the exactly visiting days and hours.
  • If you don’t know how to start this document, you can search for examples online.

Separation Agreement Example

How to make it legal

After both spouses reviewed the document, they must sign and notarize it. Then, although it’s not mandatory, lawyers recommend to deliver the original to the Clerk of Court and file it; this last step will ensure that neither of the parties makes any changes to the document.

Important: there is a fee of $210 to file the Separation Agreement in New York City, but in other counties, there are fees of just $5. It is important to identify this cost according to your place of residence.

At this point, both spouses are legally separated, and after one year, either of them can apply for a divorce. The agreements of this previous document will be taken into account, and the money paid to file it will be used as credit for the divorce expenses.

For more information about the divorce process you can read here: https://www.nycourts.gov/courthelp/Family/divorceBasics.shtml

How to Make a Complaint for Judgement of Separation

This second method is the least used since it costs almost the same as a divorce.

However, the Complaint for Judgement of Separation it’s used to receive a legal order directly from the court. One of the spouses demands and summons the other to formalize the separation.

In this case, the court decides the terms and conditions according to the marriage situation. Also, you should keep in mind the same considerations of the Separation Agreement.

As in a divorce, the grounds must be presented, such as:

  • Abandonment.
  • Imprisonment (at least three years).
  • Adultery.
  • Neglect or refusal to support the spouse.
  • Cruel and inhuman treatment

This procedure has two main differences from a divorce:

  • In cases of abandonment, a period of less than one year can be considered.
  • It can be done even if one of the spouses does not agree.

Necessary documents

In this case, you need to fill out some forms. It is highly recommended that you visit your county Clerk of Court in-person to receive all papers, fill them out, and then file them.

However, you can also get them on the NY Courts official website:

      1. Enter to the Overview page of divorce: http://ww2.nycourts.gov/divorce/index.shtml and click Uncontested Divorce Forms Packet.

Overview page of Divorce in NYcourts.gov

 

2. You’ll need these forms: Summons (UD-1a), Verified Complaint (UD-2), and Affidavit of Service (UD-3), so scroll down until you see them and then click the format you want.

Divorce forms

 

      3. These three forms are written for divorce cases, but you can use them simply by replacing the word with “legal separation.”

How to make it legal

Finally, you can sign the documents and notarize them. You must pay $220 for the fee of court index number and deliver the originals to the Clerk of Court so that they can file and process it.

You will keep two copies, one for you and one to send it to your spouse.

Then, there is a 40-days waiting period to place your case in the court’s calendar. Once they inform you of the date, the couple must show up in court to hear the decision and thus declare them officially separated.

As in the separation agreement, after one year, they can apply for a divorce.

One last advice for a legal separation

If you decide to separate from your spouse and, besides, there are children and financial issues to share, it’s better if each party has its attorney.

In some cases, the couple has only one attorney. This could work if both of you ended in good terms, but if not, one of the parties may be affected by the terms of the agreement.

Everything will depend on how you decide to resolve your differences.

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