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How to File Legal Separation

Legal separation is a court ruling indicating that a married couple is permitted to live apart while continuing to have the same rights and obligations as a divorced couple. There are two ways to file legal separation in the state of New York: a couple may agree to separation or one spouse can ask for a separation judgment on the grounds of cruel and inhuman treatment, abandonment, adultery, imprisonment or non-support.

How to File Legal Separation:

1. Review New York’s marriage-separation residency requirements. Just one of these must describe the couple’s situation:

  • The marriage ceremony must have been performed in the state of New York, one spouse must have been a resident at the time of the marriage and resided in New York continuously for a year immediately prior to the commencement.
  • The couple lived as husband and wife in New York and one spouse was a resident for one year immediately prior to the marriage.

2. Obtain legal divorce agreement papers at the county clerk’s office, website or library. Replace all references to “divorce” with “legal separation.”

3. Indicate on the separation forms the terms of the agreement. This varies depending on couples’ needs, finances and obligations. Issues like child custody and support, spousal support and the division of marital assets are detailed here. Courts encourage retaining a New York divorce lawyer for filing a separation agreement. “Since a poorly worded agreement can have serious unexpected consequences for the Parties … it is strongly recommended that you seek an attorney’s advice and assistance.”

4. Print and sign the memorandum of separation. Both parties must sign in front of a notary, which may be done independently of one another.

  • For a non-collaborative separation, the plaintiff must serve the defendant with the signed separation agreement and wait for the defendant to either sign or contest the terms of the memorandum.
  • The couple can go to mediation to resolve the terms of the separation or request a judge ruling.

5. Make copies of signed separation papers.

6. File the memorandum of separation, purchase an index number and pay a filing fee with the Clerk of the County where the plaintiff resides.

Since New York State is an “at fault” divorce state, couples must present grounds for divorce in order to file for separation. Only after one year of legal separation may a plaintiff sue a spouse for divorce. To speak with an experienced and knowledgeable New York divorce lawyer about how to file legal separation, contact Alatsas Law Firm today.