We previously posted a blog discussing some basic concepts to think about when deciding whether you and your spouse should consider entering into a separation agreement. The purpose of this week’s blog is to provide information on how a party may be able to secure a decree of separation and how it differs from a separation agreement.

As previously provided, a separation agreement is a written agreement that allows spouses an opportunity to resolve certain marital discord while also giving spouses the opportunity to live separate and apart from each other, all while remaining legally married. As addressed in the previous blog post, entering into a separation agreement does not require court intervention.

To obtain a decree of separation, which is a final judgment entered by a court separating the parties “from bed and board, forever, or for a limited time,”[1] a spouse must commence an action in court seeking a judgment of separation against their spouse.[2] Pursuant to Domestic Relations Law (“DRL”) § 200, there are five (5) reasons you can seek a judgment of separation:

  • 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.
  • The abandonment of the plaintiff by the defendant.
  • 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 law.
  • The commission of an act of adultery by the defendant, with certain exceptions.
  • The confinement of defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant.

As can be seen, a party is extremely limited in the circumstances for which they may seek a formal judgment of separation from the court. It also bears noting that a judgment of separation, just as with a divorce proceeding, can be fully contested. This means your spouse will have the full opportunity to oppose your application seeking a judgment of separation. Due to that, most people do not go this route. Instead, if spouses which to remain married but living separately, many people simply seek to enter into a separation agreement rather than proceeding with the route of securing a judgment of separation as a judgment of separation may prove to be more time consuming, costly and require court intervention.

Any person contemplating entering into a separation agreement or seeking advice on how a separation agreement could benefit them should consult legal counsel of their choice. The material in this blog is meant only to provide general information and is not a substitute nor is it legal advice to you. In the event you need legal assistance, please contact Hanna E. Kirkpatrick or Samantha M. Guido at 516-746-8000 or via email at hkirkpatrick@jaspanllp.com or sguido@jaspanllp.com.

[1] DRL § 200.

[2] Note that a legal separation is different than a divorce. A divorce dissolves a marriage; whereas parties who are legally separated by a judgment of separation continue to be married.