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Legally Separated Before Divorce in New York

Posted on February 18, 2020

Do I Need a Legal Separation Before Divorcing in New York?

New York is one of several states that recognizes and grants legal separations to married couples. A legal separation is not a divorce, but many of the issues you would resolve in a divorce are also addressed in legal separations, such as equitable property division, spousal support, child custody, and child support. Legally separating for a period of time is also one potential path to divorce in New York, but it’s not the only one.

Separating before divorce

A common misconception is that couples must wait up to one year to file for divorce in New York after living separately. In truth, there is no mandatory wait time to file for divorce on fault-based or no-fault grounds; however, legally separating first for at least one year simplifies the divorce process should you decide to dissolve your marriage officially.

Only the grounds for divorce require a period of physical separation:

  • Abandonment – A fault-based ground in which the plaintiff (filing spouse) must demonstrate that his or her ex left the shared living space for a period of one year or more
  • Imprisonment – A fault-based ground in which the couple were married before imprisonment began, and the at-fault spouse (defendant) has been or was in prison for at least three years
  • Divorce after legal separation – This is the only no-fault ground that requires a one-year period before divorcing. The advantage is that if the couple decides to proceed with a divorce after one year or more of legal separation, they can convert their separation agreement or judgment terms into their divorce judgment via court petition, thereby avoiding more time in court and the associated costs. For this reason, the method is sometimes referred to as a conversion divorce.

Other options for no-fault divorce

A couple does not have to be legally separated to file for a no-fault divorce. No-fault divorce simply means that neither spouse has to prove that the other did something wrong that led to ending the marriage. In some states, it’s known as irreconcilable differences; here in New York it’s referred to as “irretrievable breakdown” of the marriage. While the couple must express that the marriage has been effectively over for at least six months, there is no requirement for living separately first.

In order to obtain a no-fault divorce in New York City, you and your spouse must first settle all the typical issues that would be addressed in divorce—division of property, alimony (where applicable), and parenting details (child support and custody). Then you can file the necessary paperwork and sign the necessary documents, avoiding court entirely.

Consult a skilled NYC divorce lawyer for help with your legal separation or no-fault divorce

At the Law Office of Vivien I. Stark, P.C., our New York matrimonial lawyer helps individuals and couples find the most sensible paths to separation or divorce. Call (212) 349-1600 or contact us online to learn more about our services and set up a consultation.