I am often asked about the parties becoming legally separated instead of getting a divorce. In New York, you can sue for separation as an alternative, or in addition to, a divorce. Whether or not that makes sense on legal, practical or emotion level is another issue.
To obtain a judgment of separation entails the same work as a divorce, but the parties remain legally married and no distribution of assets can occur. There are only fault grounds for a separation. If all that is granted is a judgment of separation, while that decree, after living separate and apart based upon it, can be converted into the divorce decree with a new law suit, the same financial disclosure is necessary and the issues of equitable distribution will have to be dealt with, usually requiring a duplication of effort, attorney time and costs.
The only other way is to work out, by agreement, all of the issues to be divorce, such as custody, parenting time, child and spousal support and equitable distribution; sign an agreement (form here is very important) before a notary and have it “acknowledged” and filed with the County Clerk where one (or both) of the parties resides; if a divorce is desired, you wait one year from the date of the agreement, to sued for divorce based upon the agreement. However, the same agreement can be the basis for divorce immediately.
Why wait? Sometimes, the existence of a family medical insurance policy is the reason. Sometime, the parties are simply not ready to dissolve the marriage legally. I recommend against this approach unless necessary for medical insurance purposes.
As New York now has no fault divorce, there is less need to request a separation, with the exceptions noted.
*The National Board of Trial Advocacy is not affiliated with any governmental authority. Certification is not a requirement for the practice of law in the State of New York and does not necessarily indicate greater competence than other attorneys experienced in this field of law.