New York recognises legal separation. Spouses who want to live apart without ending the marriage have two options, and the one most couples use does not involve going to court at all.

Separation by written agreement

The more common route is a separation agreement — a written contract between spouses setting out that they will live separate and apart, and the terms on which they will do so. A separation agreement typically covers financial responsibilities, property, spousal support, and, where there are children, custody, parenting time and child support.

To be valid, a separation agreement must be in writing and signed by both spouses, and both signatures must be acknowledged before a notary public in the form required to record a deed. The spouses do not have to sign at the same time or use the same notary. There is no standard court form for a separation agreement; it is drafted for the couple's own circumstances.

The agreement is binding once both spouses have signed and had their signatures acknowledged. Either spouse may also file it with the County Clerk in their county of residence for a small filing fee. Filing is optional, but it creates a public record of the date the agreement was made — which matters if the separation is later converted into a divorce.

Separation by court judgment

A spouse may instead bring an action for separation and ask the court for a judgment of separation. Unlike a divorce on no-fault grounds, this requires proving one of the grounds set out in New York law: cruel and inhuman treatment, abandonment, neglect or refusal to provide support, adultery, or confinement in prison for three or more consecutive years after the marriage.

This route involves litigation and is far less common than a separation agreement.

What a legal separation does and does not do

A legal separation does not end the marriage. Separated spouses remain legally married and cannot remarry. Couples choose separation instead of divorce for a range of reasons — religious convictions, keeping health insurance or other benefits in place, or wanting time apart before deciding whether to divorce.

Turning a separation into a divorce

Where spouses have lived apart under a written separation agreement, or under a judgment of separation, for one year or more, and the spouse asking for the divorce has substantially performed the terms of that agreement or judgment, that separation can itself be the ground for a divorce. This is often called a conversion divorce.

How we can help

New York Divorce Online is an attorney-led service for uncontested divorce. We do not draft separation agreements and we do not handle actions for separation. If you and your spouse have already been living apart under a separation agreement, or you have decided to end the marriage rather than separate, take our short pre-qualification check to see whether your case can be completed online.

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