Action for Separation

When a marriage is not working out and one or both parties decides that it is time to considering ending the relationship, a legal separation is an option. An action for separation is an alternative to an action for divorce. A separation does not dissolve a marriage like a divorce does. However, the couple decides to live apart. In addition, it can settle many issues that a divorce would settle such as child custody, visitation, child support, and spousal maintenance. Because the couples would remain legally married, an action for separation does not allow for equitable distribution of marital assets the way a divorce would. If you are contemplating separation, immediately contact an experienced New York separation lawyer. Because legal separation is complex, it is important that you are represented by someone who has the experience, skill, and resources to protect your interests doing this difficult time.

According to NY Dom Rel Law § 200, a husband or wife can file an action for separation against the other party. The grounds for separation include:

• Cruel and inhuman treatment
• Abandonment
• Failure to support
• Adultery
• Imprisonment

The marriage separation agreement will define the terms of the separation such as child custody, visitation, spousal maintenance, and other obligations. If a spouse fails to abide by the terms of the agreement, the other spouse can seek to enforce the agreement in court.

Unlike a divorce, an action for separation does not result in the permanent termination of the marriage. The separation can be permanent, or it can be temporary. Should the couple choose to resume their relationship and again cohabitate as husband and wife, they can do so. The separation agreement would become void if the couple decides to live together again, or by executing another agreement voiding the separation agreement.

If the couple decides to get a divorce, they can use the separation as a grounds for divorce as long as they have lived apart for at least a year. However, if they do not want to wait a year, they can file an action for divorce under New York’s “no fault” option.

1. Action for divorce: New York Domestic Relations Law, section 170
2. Legitimacy of children: New York Domestic Relations Law, section 175
3. Defense of justification: New York Domestic Relations Law, section 202
4. Judgment for separation revocable: New York Domestic Relations Law, section 203

An action may be maintained by a husband or wife against the other party to the marriage to procure a judgment separating the parties from bed and board, forever, or for a limited time, for any of the following causes:

1.  The cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant.
2.  The abandonment of the plaintiff by the defendant.
3.  The neglect or refusal of the defendant-spouse to provide for the support of the plaintiff-spouse where the defendant-spouse is chargeable with such support under the provisions of section thirty-two of this chapter or of section four hundred twelve of the family court act.
4.  The commission of an act of adultery by the defendant; except where such offense is committed by the procurement or with the connivance of the plaintiff or where there is voluntary cohabitation of the parties with the knowledge of the offense or where action was not commenced within five years after the discovery by the plaintiff of the offense charged or where the plaintiff has also been guilty of adultery under such circumstances that the defendant would have been entitled, if innocent, to a divorce, provided that adultery for the purposes of this subdivision is hereby defined as the commission of an act of sexual intercourse, oral sexual conduct or anal sexual conduct, voluntarily performed by the defendant, with a person other than the plaintiff after the marriage of plaintiff and defendant. Oral sexual conduct and anal sexual conduct include, but are not limited to, sexual conduct as defined in subdivision two of section 130.00 and subdivision three of section 130.20 of the penal law.
5.  The confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant.

We know how stressful martial problems and other family issues can be. At the Law Offices of Stephen Bilkis & Associates, our goal is to find the solution that is right for you. Whether you are seeking an action for separation or an action for divorce, we have the skill and resources to help. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Nassau County, Queens, Suffolk County, Bronx, Brooklyn, Long Island, Manhattan, Staten Island, and Westchester County.