Separation agreements in New York

When a couple decides to separate, it’s not as simple as occupying different addresses. Such an arrangement changes where you get your mail, but nothing more. You’re still married, so any assets you acquire while ‘separated’ are subject to equitable distribution should you eventually divorce, and both spousal support and child custody remain open questions.

In short, you need a separation agreement.

A separation agreement is a contract confirming that you and your spouse will live apart on specified terms and under certain conditions. Before no-fault divorces were allowed in New York, couples who did not want to assign blame to each other used legal separation as grounds for divorce. Others relied on separation agreements to keep financial security and health care benefits in place while they spent some time apart and decided whether to reconcile or divorce, Some couples used the agreements to stay in good standing with a church that either frowned upon divorce or disallowed it entirely, such as Catholic communities.

To be effective, agreement clauses need to cover the following:

• Child custody and visitation schedule
• Child support
• Spousal support (if applicable)
• Division of assets and debts

Separation agreements must clearly state the obligations of each spouse during the time apart. If one of you does not honor your obligations as per the contract, then the other can enforce the agreement in court.

While some couples use separation agreements to take a ‘time out’ so they can emotionally recoup and work toward reconciliation, others implement them as a prelude for divorce. In New York State, you may obtain a judgment of divorce if it can be established that you and your spouse have lived separate and apart for over a year and complied with the requirements of your separation agreement.

Like all contracts, you or your spouse may challenge some or all aspects of a signed separation agreement for reasons like the following:

• Unfair and inequitable terms: If the agreement is mostly one-sided by favoring one spouse over another, a court may decide that it is too unconscionable to be enforced.
• Signed under duress: If pressure was involved in the signing of the contract, making one spouse feel that they had no choice but to agree, then it may be rendered invalid.
• Fraud: A separation agreement can be nullified if one or both of you failed to disclose all assets or otherwise behaved in a dishonest manner.

If you and your spouse are ready to file for legal separation in New York, each of you should retain a family law attorney with experience in putting together separation agreements. These contracts are relatively affordable to draw up and legal advice will result in a more enforceable agreement. They also have the advantage of being less extreme than a divorce action.

While the marriage may eventually end in divorce, a period of separation will give you both the time and confidence to be sure that you’re making the right decision, as well as prepare you and any minor children for a better future.

If you are considering getting a separation from your spouse, then you should contact a qualified, experienced lawyer. The lawyers of Eskin & Eskin, P.C. have over 40 years of combined experience. They are a family law firm for family law needs and offer free consultations. To learn more about our firm and to set up an appointment, call 718-402-5204 or visit www.EskinAndEskinLaw.com.