Separation Required before divorce

What is the name of your state? NY

Is a legal separation required before a divorce? Why? I realize the answer may be because it is. what does a legal separation do for either party?

New York is a "no fault" divorce state, meaning it is neither parties "fault" that the marrige broke down. And also that you can file your own divorce without need of an attorney, if you wish. The separation agreement has many important uses. One being it shows the court the date you separated and proves you lived separate and apart for at least one year. It also is an opportunity to stipulate, in writing, issues which may come up later if not addressed. It is a good thing. This is not legal advice...but life advice.

thanks for your reply. I still have a couple of questions. Is a legal separation required for any period of time before one can get a divorce? Can the separation agreement be dated retroactively? I have been married, but living apart, for over a year, although I do spend weekends and sometimes weeks in the old residence to be with my son if my wife is away.

What if the parties do not agree on the terms or even on the desire for a divorce? Do you then sue for a legal separation or go straight for a divorce?

Thanks for any assistance anyone can provide.

MaggieK said:

New York is a "no fault" divorce state, meaning it is neither parties "fault" that the marrige broke down.

Click to expand...

WRONG!!!! New York is a FAULT state! http://www.divorceinfo.com/nyfaqsmiscellaneous.htm

It is not unheard of in NYS for a divorce to NOT be granted because the burden of proof has not been met.

Those of us in the legal field are well aware the law is not black or white. Because most couples seeking a divorce are rarely interested in the advice of a high cost attorney and dragging out a uncontested divorce for decades, we tend to provide information pertaining only to the question at hand and do not provide a full detail citing of the law of their state. That being said, New York is a "no fault" divorce state as stipulated in the following statute. It is also a Fault divorce state, stipulated by the following statute. It should go without saying, a couple would know which is applicable in their situation.

Statutory Reference to New York Domestic Relations Law:
Divorce: § 170
Grounds:

No-fault: (1) Living separate and apart for one year under the terms of a separation agreement which is in writing and signed and notarized; (2) Living separate and apart for one year under the terms of a judicial separation decree.

Fault: (1) adultery; (2) abandonment for one year; (3) imprisonment for three or more consecutive years; (4) cruel and inhuman treatment.

You're in Florida, girlfriend. Trust me - I was divorced in NYS, and I paid a top-flight attorney for it. NY is a fault state. The "no fault" part is based on filing for a separation - which requires one of the fault criteria to be met, and that the separation judgement is granted by the Supreme Court of the State of NY.

Crowe - talk to a local lawyer. That's your best bet.

For the benefit of those who do not know, any civil/family action through the courts of any jurisdicition, in any state, neither the petitioner or respondent is guaranteed to prevail. Judges have sole discretion over the cases they hear and may deny or grant your petition.

I too was divorced in New York two years ago.(Chemung county) and have also prepared many dissolutions through the New York judicial system in various different counties, all successfully brought to final hearing. A divorce lawyer is always going to advise their client to go the route of the "fault" divorce, how else would they make a decent living, poor things? If the separation agreement is prepared correctly and all issues are agreed upon, a couple can and many do prepare, file and obtain legal dissolutions of marriage without benefit or expense of an attorney, not only in New York State but all over the country. Most states have come to realize that not everyone can afford the high fees charged by attorneys. Over the past 15 or so years the courts are attempting to accomodate those individuals by becoming "no fault" states. Most county courts offer packets to assist non-lawyers with their petitions and even provide court personnel, called Intake, with filing those petitions. My suggestion to the original poster is to simply call the clerk of court in your county and ask. Do not ask for legal advice as they will quickly tell you they do not give legal advice. Do ask if you may prepare and file your own divorce, separation agreement to be incorporated. If so, ask if they provide the forms, usually a small fee. They should be more than willing to assist you, the taxpayer, with your query. Best of luck.

Whatever you say, Maggie. But I can tell you that if a child was involved in a divorce situation, I would never ever ever advise a paralegal. There is simply too much at stake.

Crowe - really, your best bet is to at least consult with an attorney. Is it costly? Yes, it is. There are ways to mitigate those expenses - mostly by educating yourself and doing a hell of a lot of legwork. You have a kid involved - the money will be well spent to safeguard your rights.

I appreciate all the responses. It seems like it's really up to us as to whether we can agree on things. The issue that is still unanswered is whether we need to have a separation agreement in effect for any particular period of time before we can be divorced. I'll speak to an attorney on that.

You question was answered on my 3/24 post. I even cited the statute for you, with the terms of the separation. Please re-read.

You are right. I did not read carefully. Thanks.