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Wednesday, March 26, 2014

What is a Separation Agreement?

This is one of the most commonly asked questions from both Mediation and Divorce clients.  It is also one of the most misunderstood areas of the law.  Here is some basic information:




  • A Separation Agreement is a Contract between two married people ("spouses" is the term I will use, since a marriage can be between same sex couples in the State of New York).
  • A Separation Agreement is NOT granted by the Court.  You can stop looking on the court website for the application because there is none.  
  • Like any contract, there must be a meeting of the minds, and both parties must voluntarily agree to all the terms contained therein.
  • There is an additional requirement under New York State law (Christian v. Christian, et. al.), that the terms of the Separation Agreement be fair to both spouses.  In other words, in a commercial setting, if your lawyer knows the law and the other lawyer is an idiot, great, you can get over on the other party.  Not so in NYS Separation Agreements, the contract must be inherently fair.  
  • The basic terms that would be covered in a divorce trial must be addressed in the Separation Agreement, these include:  living separate and apart, who is responsible for paying what bills, custody, child support and child support add ons, visitation, health insurance, maintenance, equitable distribution of marital property and liabilities, tax exemptions and tax filings, etc.
  • To comply with NYS law, you will need to have the Separation Agreement prepared by an attorney or a very experienced non-attorney Mediator.  If improperly prepared, the Agreement may be rendered invalid.
  • If it is your intention that the Separation Agreement be incorporated but not merged into an uncontested Judgment of Divorce, make sure it is prepared by an attorney who knows what they are doing.  
  • The spouses must both agree and execute the entire Separation Agreement, with the signatures properly acknowledged in the form that would entitle a deed to be recorded.
  • A Separation Agreement becomes legal and binding when executed.
  • The Separation Agreement may filed with the County Clerk's Office in the county where one spouse resides.  There is a filing fee of $5.00.
  • The effective date of the Separation Agreement -- the day you are legall separated -- is the date of execution.  That is the date that both parties, or the second party if signing in counterpart, signs before a notary public.   
  • Conversion Divorce:  living separate and apart pursuant to a Separation Agreement is a ground for Divorce.  Therefore, one year after signing and notarizing the Agreement, you or your spouse may file for a divorce based on your Separation Agreement. This is called a “conversion” divorce (Domestic Relations Law§170[6]).   Note:  this used to be a very popular ground for divorce but since NYS enacted DRL Section 170(7), Irretrievable Breakdown of the marriage for a period in excess of 6 months (commonly known as Irreconcilable Differences), there has been less of a need for Section 170(6) as grounds for divorce.  
  • The $5.00 fee paid to file the Agreement will be credited to the divorce filing fees if you file in the same county where your Agreement was filed. You must file the Agreement at the time you file for the divorce, if you have not already done so. 
  • The main difference between being Separated pursuant to a separation agreement and Divorced pursuant to a Judgment of Divorce is that one is a contract and the other is a court order.  If a spouse doesn't comply with a term in the separation agreement, the remedy is a suit for breach of contract.  If a party violates the terms of a judgment of divorce, the other party has a panoply of remedies, potentially including contempt, if the violation was willful and other criteria are met.  
  •  Juliana LoBiondo has been a Mediator for 25 years and a New York State duly licensed attorney for 23 years.  For more information visit www.LoBiondoLaw.com.  To set up a free mediation information session, call (845) 569-7600.  
  • Photo credit:  eonlinenews.com

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