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What constitutes a legal separation in New York?

In moving forward in filing for divorce, couples are required to draft a Separation Agreement. Courts think of this document as a type of spousal contract whereby both parties agree to certain conditions as the grounds for settling their divorce.

This is why it requires that both spouses collaborate in drafting this document and signing it. If a spouse either cannot be found or is having difficulty in agreeing with his or her ex, then other legal avenues may have to be pursued to ultimately be granted a divorce.

One of the primary purposes of the drafting of this document is to establish that you and your ex are living independent of one another. However, it also serves the role of clearly defining who the responsible for paying the different household bills is. It also spells out the couple's wishes with respect to what is going to happen with the marital property.

For couples with kids, this agreement also highlights which of the two parents is going to retain primary custody of the children and how much child support will be paid by the other. It will commonly outline how visitation is going to work as well.

There are a number of other topics that a couple may want to have documented so that they can avoid fighting over them in the future.

Once the couple has drafted the agreement, they are expected to wait to sign it until they are in front of a notary public. While the couple isn't required to appear in front of the notary at the same time, the date of separation is only deemed to have commenced once both parties have signed the document.

A couple is eligible to file for divorce a year out from the date they originally sign the Separation Agreement according to New York Domestic Relations Law ยง170[6]. It's during the divorce proceedings that a couple may elect to have some or all of the terms of that agreement incorporated into their divorce decree.

In order to do so, the judge may require that the couple's agreement contains specific wording. One of the benefits of collaborating with a New York divorce attorney is they understand the language that should be included in the Separation Agreement that has the strongest chance of resulting in a swift divorce.

Source: NYCourts.gov, "What is a legal separation by agreement of both parties?," accessed May 31, 2017

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