When two spouses separate, it is best for them to enter into a Separation Agreement. A separation agreement is a detailed contract between you and your spouse that can include spousal support, child custody, visitation rights and a division of the property acquired during the marriage. If one spouse does not comply, the court will enforce the agreement. If the spouses later divorce, it may be included in the divorce judgment.
Some benefits of a well-drafted separation agreement:
- You may retain certain benefits of a married couple, including health insurance benefits.
- You may restrict access to joint checking, savings and credit card accounts.
- You can protect your rights in all matters relating to alimony, child custody and child support.
- You may protect yourself from any debt incurred by your spouse during the waiting period prior to your divorce becoming final.
- Spousal payments may be deducted from taxes only if the obligation is part of your separation agreement (or court order).
- Your separation agreement can include specific items relating to mortgage payments, home maintenance and use.
The agreement is filed with the Clerk of the County in New York where either spouse lives. One year after successfully executing a separation agreement, one spouse may then sue the other for divorce based upon the separation agreement, and the other spouse can consent to this. All that must be proven to the New York Court is that the agreement was duly executed and acknowledged and was properly filed; that the spouses have in fact lived apart during the period of the agreement up to the time of the divorce action; and that the Plaintiff has substantially complied with the terms of the separation agreement.
Separation Judgment
In New York, another form of separation is through a Judgment of Separation granted by the Supreme Court. This judgment is based on the same “fault” grounds as for divorce. One year after the filing of the Court’s judgment of separation, either spouse may sue for a “no-fault” divorce, based upon one year of living apart. In New York, a divorce after a separation judgment does not occur automatically after a year. Court action must be taken to file.
Avoid problems during a divorce with a Separation Agreement
If you think you need time away from your spouse, a separation agreement will protect you both. Since all of the issues must be resolved before a separation agreement is considered valid, it is strongly advised that each spouse in the case be represented by an experienced attorney. Call us or contact us online. One of the attorneys at Jacoby & Jacoby will meet with you at any of our four convenient Long Island locations for a free consultation.
Medford, NY: 631-289-4600
Miller Place, NY: 631-821-8800
Shirley, NY: 631-281-2234
Nassau County, NY: 888-452-2629
