Defense of justification

When a couple is experiencing marital problems but is not ready to get a divorce, another option is to separate. There are two ways to legally separate in New York. One is by executing an agreement of separation. Both couples must sign off on the agreement. The other is to petition the court and request that it issue a judgment or decree of separation. It is only necessary that one of the spouses petition the court seeking a judgment of separation. That spouse would be the plaintiff, while the other spouse would be the defendant. The defendant spouse has the right to raise misconduct on the part of the plaintiff as a defense. Whether you want to file a petition for separation or you are the defendant in such an action, it is important that you are represented by an experienced New York separation lawyer. Even though a separation will not terminate your marriage, it will impact your family dynamics and your finances. It is critical that you have someone with experience to ensure that your interests are protected.

In order to obtain a judgment or decree, you or your spouse must commence an action for a separation and the court must issue a judgment. The action must be based on one of the 5 enumerated grounds set forth in the Domestic Relations statute. The grounds are cruel and inhuman treatment, abandonment, refusal to support, adultery, or imprisonment for at least 3 consecutive years. While there is such a thing as a “no fault” divorce, there is no such thing as a no fault separation. There must be a reason supported by facts.

However, just because you petition the court for a separation and give grounds for it does not mean that the court will grant it. The defendant spouse has the right to defend him or herself. Under NY Dom Rel Law § 202, the defendant spouse may raise misconduct by the plaintiff spouse as a defense to a separation action. If the court finds that the defendant established a defense, it may not issue a decree of separation. If the court does issue a judgment of separation, it will contain terms that both parties must follow. The terms may include asset division, debt allocation, spousal support, child custody, visitation, and child support.

Another way to legally separate from your spouse is for you and your spouse to create a separation agreement and sign off on it. This requires both of you to agree to the terms of the separation. Like a decree of separation, a separation agreement can include asset division, debt allocation, spousal support, child custody, visitation, and child support. Your separation agreement must be properly executed, and you should file it with the county clerk.

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

The defendant in an action for separation from bed and board may set up, in justification, the misconduct of the plaintiff; and if that defense is established to the satisfaction of the court, the defendant is entitled to judgment.

If you are struggling in your marriage and would like to live apart from your spouse, contact an experienced New York separation lawyer at the Law Offices of Stephen Bilkis & Associates. With over 2 decades of experience, we have the resources, skill, and knowledge to help you find the solution that is right for you during this difficult time. 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.