Separation and Divorce
My spouse and I want to split. What options do we have?
When a couple decides to part ways with each other, they may choose either a divorce or a legal separation.
A divorce is when the marriage is legally terminated by the court pursuant to a divorce judgment. The divorce judgment contains instructions regarding marital assets, debts, and property, spousal and child support, and child custody and visitation.
What is the difference between an uncontested and contested divorce?
Two types of divorce exist in New York: uncontested and contested. In an uncontested divorce, it is expected that both parties will agree on all aspects of the divorce. In a contested divorce, both spouses fell they are likely to disagree on certain aspects of the divorce and want a judge to make the final decision in their case.
How do I get a divorce?
In addition to meeting certain residency requirements, the state of New York requires the spouse seeking a divorce to allege a ground for divorce. NY Domestic Relations Law section 170 provides seven available grounds for divorce:
- Cruel and Inhuman Treatment: The mental or physical well being of one spouse is at risk if he or she remains in the marriage.
- Abandonment: One spouse abandons the other spouse for at least one year.
- Imprisonment: One spouse is in jail for three or more years.
- Judgment of Separation: Both spouses have been living apart from each other for at least one year pursuant to a Judgment of Separation ordered by the court.
- Separation Agreement: Both spouses have been living apart from each other for at least one year pursuant to a written "Agreement of Separation" signed by each spouse.
- Irretrievable Breakdown: The married couple's relationship has broken down irretrievably for a period of at least six months. This is commonly referred to as a "no fault" divorce.
What is a legal separation?
A legal separation is when the spouses live separate lives but the marriage has not been legally terminated. In order for a legal separation to be recognized, both spouses must enter into a written separation agreement. The separation agreement contains provisions regarding property division, child and spousal support, and child custody and visitation rights. There may be benefits of choosing a legal separation over a divorce, such as the ability to file a joint tax return and the retention of medical benefits.
Do I need a lawyer to get a divorce or to get legally separated?
It is wise to have a consultation with an experienced lawyer on process choices as they relate to your case so that you can make an informed decision about what is the right choice for your family. Hiring a lawyer will help to ensure your interests are met and that your agreement is reasonable, practical and durable.