Not Quite Ready: Separation in New York
Prior to October 2010, separating in New York was the only option for couples seeking divorce without having to claim a fault ground of divorce.
A separation agreement details necessary marital issues like property division, spousal maintenance, child custody, and related financial concerns. After separation of a year or more, the agreement converts into a quickly resolved divorce action.
Since 2010, irretrievable breakdown has become the primary ground for those seeking a no-fault divorce. Although it does require a statement of the irreparable nature of the marriage relationship and resolution of the same marital issues, divorce is faster than separation in uncontested cases.
But my practice still serves couples interested in separation but not divorce—at least not right now. While these marriages have broken down in the same way as those seeking outright divorce, there are reasons some couples choose to remain married, including:
- Preservation of wealth and benefits. Regardless of economic background, two can live more cheaply than one. In some cases one partner would lose health insurance or other benefits upon divorce. In others, a couple would lose substantial accumulated wealth in transfer and distribution of assets.
- It feels like home. Many couples are genuinely fond of each other—but no longer in love. While still caring for their spouse, they choose to legally separate sometimes as a first step toward divorce, sometimes not.
Often, avoiding the emotional backlash of divorce, separation is a good route for couples not quite ready to call it quits.