You and your spouse have a separation agreement or judgment of separation . . . now what? Well, as we previously wrote, spouses who enter into a legal separation always have the option of getting back together without having to remarry. However, spouses may also use their separation agreement or judgment of separation to seek a final and binding divorce decree.
Despite the fact that New York State is a no-fault divorce state (all you need to show is that your relationship has irretrievably broken down for a period of six (6) months or more)[1], the law also provides ways for spouses to turn their legal separation, whether it was done by way of a separation agreement or a judgment of separation, into a binding divorce decree. There are two (2) provisions of the Domestic Relations Law (“DRL”) that speak to this point.
First, in order to turn your judgment of separation into a binding divorce decree, DRL § 170(5) provides:
An action for divorce may be maintained by a husband or wife to procure a judgment divorcing the parties and dissolving the marriage on any of the following grounds:
(5)The husband and wife have lived apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment, and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such decree or judgment.
DRL § 170(5) is applicable when parties obtain a judgment or decree of separation under New York Law, which (as noted in our previous blog) requires the parties to commence an action for separation in court.
To convert your separation agreement into a binding divorce decree, DRL § 170(6) provides:
An action for divorce may be maintained by a husband or wife to procure a judgment divorcing the parties and dissolving the marriage on any of the following grounds:
(6)The husband and wife have lived separate and apart pursuant to a written agreement of separation, subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded, for a period of one or more years after the execution of such agreement and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such agreement. . . .
DRL § 170(6) is applicable when parties enter into a separation agreement but do not receive a judgment of separation.[2]
Both DRL §§ 170(5) and 170(6) are avenues for individuals to obtain a judgment of divorce in New York State based upon either a judgment of separation or a separation agreement. Under both provisions, parties are required to wait at least one (1) year before they may obtain a judgment of divorce.
Should you and your spouse decide to get a divorce, a few things can happen to your separation agreement. First, your separation agreement can merge into a judgment of divorce. This means that the separation agreement will no longer exist as a separate and enforceable agreement. Instead, the separation agreement will become apart of the judgment of divorce.
Second, the separation agreement can survive as a separate and enforceable contract after the judgment of divorce is signed. Thus, all the terms set forth in the separation agreement remain valid and binding on the parties. It is important to note, however, that separation agreements are subject to modification under the law. Thus, a separation agreement may be modified prior to the entry of the judgment of divorce to reflect new or additional terms for you and your spouse.
Although spouses are not required to wait the required year to obtain a divorce and can, at any time, seek counsel of their choosing and file for divorce on the no-fault divorce ground, it is always nice to know you have another option available to you. Even if you decide to file for divorce pursuant to the no-fault statutory provision, you can still submit your separation agreement as part of a divorce decree should you decide to seek a no-fault divorce.
Any person seeking advice on how to obtain a judgment of divorce after being legally separated 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 § 170(7).
[2] The difference between a judgment of separation and separate agreement are more fully laid out in our October 28, 2021 blog.