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The Path to Separation: How Separation Agreements Work in New York State

by | Jun 30, 2020 | Firm News |

Once you have decided to end your marriage, the divorce process may still take some time. How long the divorce will take will depend on a number of factors, including the types of marital property involved and whether you and the other party can agree on matters such as property division and child custody. Additionally, the COVID-19 pandemic has complicated the resolution of property division and child custody issues for many divorcing spouses.

However, an important thing to understand is that, as you and the other party work toward finalizing the divorce, you also have the option of addressing parenting and property issues in a legal separation agreement.  These terms often form the basis for a permanent agreement.  According to Founding Partner, Mitchell Y. Cohen, many couples enter into an interim separation agreement so that they may live apart during the pendency of their case and at the same time have an agreement that covers interim issues such as occupancy of the marital home, custody and visitation and support.

What is a separation agreement?

A separation agreement is a contract between two spouses. When you both sign the agreement, you agree to live separate and apart. The contract can also address a variety of issues that you both want to include. For example, you can address the use of particular items of property during the separation, and you can specify where the children will live during this time of transition. You can also address matters of spousal support and child support.

To make the agreement legally binding and enforceable, a notary will need to sign it, with a proper acknowledgment form. The agreement becomes legally binding as soon as it is notarized.

Note: One year after it is notarized, the separation agreement itself can be used as the basis for the divorce filing if all financial and custody related issues are resolved.  New York also has a no-fault divorce statute so it is no longer necessary to wait one year.  Typically the terms of the separation agreement are incorporated into the Judgment of Divorce.

If finalizing your divorce will take some time, a separation agreement can help you and your spouse set terms for your time apart in the form of an interim agreement that is binding until a full settlement is reached or the Court decides the case after a trial. According to Cohen “this often avoids marital discord in the home and can also be effective to reduce the need for court intervention and the legal fees that are incurred with court proceedings.”  It is always recommended that you seek counsel from an experienced family law attorney before drafting or signing a separation agreement. For more on these matters, please see our separation agreement overview.