In New York, there are two ways to obtain a legal separation:
- Amicably resolve differences and memorialize them in a settlement agreement; or
- Fle an Action for Separation with the court to get a Judgment of Separation in a contested proceeding. This is very rare; most family lawyers would never have a client seek a contested separation.
There could be several reasons why a married couple in New York might choose to legally separate and not pursue a divorce. One reason may be a spouse’s concern about maintaining his or her medical insurance. Where one spouse’s medical insurance is provided by the other spouse’s employer, coverage for the non-employee spouse terminates upon the dissolution of the marriage. Remaining legally married, however, ensures coverage for the non-employee spouse in New York, as a legal separation would not terminate his or her insurance coverage in most cases.
Someone might have psychological or religious reasons for choosing legal separation instead of divorce; they want to stay married, but they also want to live separate and apart from each other. A legal separation can remain in place indefinitely if both spouses do not wish to convert it into a divorce. However, after one year from the date of signing has expired, either party can ask the court to convert such a legal separation into a divorce.
Separation Agreement vs. Divorce Agreement in New york
Traditionally, a separation agreement would be a mirror image of a divorce agreement. It resolves issues related to children of the marriage, if any, and would provide for custody and parental access time, child support, and perhaps college education and support issues.
A separation agreement also deals with financial issues. The couple must follow the same process of categorizing all assets as either marital or separate property, identifying all of the marital assets (generally, these are assets acquired during the marriage without regard to whose name they are in), valuing the marital assets, considering the tax implications of those assets, then equitably distributing the marital assets. Some assets are easy to value, and others require experts.
A separation agreement can form part or all of a later divorce agreement, which is why it is so important that parties are represented and have full and complete financial disclosure upon entering into a separation agreement in New York. This is especially true in that one of the two parties could subsequently convert a separation into a divorce, and even if there is a contested divorce in the future, the terms of the separation agreement, to the extent that they resolve the child related and financial issues, would be valid.
There is one caveat: when parties sign any separation or divorce agreement that includes provisions concerning their children, the court always has the authority to modify or change the child-related terms of such an agreement. The reasoning is that the children were not parties to the agreement, and a court can modify terms which are inconsistent with their best interests. After the separation agreement has been finalized, one of the parents or the children can petition the court to revise the sections pertaining to the children, presenting proof to show why one or more contractual provisions are not in the children’s best interest.
How to Create a Valid Separation Agreement in New York
The process of creating a valid separation agreement begins with both spouses providing full and complete financial disclosure. Married spouses have a fiduciary obligation to be truthful and honest when entering into an agreement to separate; if they don’t provide full and complete financial information, then the agreement can be invalidated at a later date.
Believing it will save time or money, some divorcing couples in New York attempt to create their own agreement without professional assistance. In New York, a separation agreement must be executed with the same formality required for a deed to be recorded, which includes having a notary sign an acknowledgment.
Depending on the terms of your separation agreement, if at some point you decide to reconcile, only to discover that your relationship is not improving, it is important to know that temporary reconciliation could invalidate a separation agreement. An experienced family law attorney will provide a reconciliation provision, which would supersede the common law that otherwise would terminate a separation agreement in the event of reconciliation.
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New York Divorce By Publication – Missing Spouse
Unsure how to divorce a missing spouse? When one spouse wants to call it quits but cannot find his or her missing partner, or when he or she is hiding, divorce by publication comes into play. Divorce by publication in NY happens “only after a judge has been convinced, based on a sworn declaration, of the serving party’s inability to find the Defendant after trying hard. Service by publication is commonly used in a divorce action to serve a spouse who has disappeared without a leaving a forwarding address. “
When the Respondent cannot or will not be found (and, therefore, cannot be given the Summons and Complaint), Petitioner must pursue alternative service and sometimes what is termed a “diligent search” followed by Service by Publication.
If the Petitioner knows where the spouse works or lives, “but cannot find him to serve and cannot find a person of suitable age and discretion at either location,” the Summons can be affixed to the door of the absent partner’s residence. At the same time, a copy must be mailed by first class mail. This is called “nail and mail.” Both copies must be marked “personal and confidential,” and both types of service must happen within 20 days of each other, and the Affidavit of Service, by which the Petitioner affirms that the papers were sent, must be filed in the New York divorce court within 20 days of whichever type happens last.
New York’s Search Requirements and Process
- checking the telephone book and directory assistance in the area where the missing spouse was last known to live;
- asking friends and relatives who might know the location of the missing spouse;
- checking the post office for any forwarding address of the missing spouse;
- checking records of the Department of Motor Vehicles to see if the missing spouse has any registrations;
- checking any other possible sources that might lead to a current address.
In order to be eligible for a “Divorce by Publication”, you must complete and submit an Affidavit of Diligent Search to the court. This document clearly outlines all of the actions you have taken to locate your spouse, essentially proving to the court that your spouse absolutely can’t be found.
If you actively pursue locating your spouse through the methods outlined in the Affidavit of Diligent Search, and still can’t locate your spouse, then a “Divorce by Publication” is your likely method of getting a divorce.
Filing for Divorce by Publication in New York
If the search is fruitless, the Petitioner files a Notice of Motion for Alternative Service, which requests the court approve either nail and mail or service by publication, and a Request for Judicial Intervention, which is an ex parte application for dissolution of marriage. At the same time, the Petitioner must prepare an Order Directing Service, which permits service by publication.
In Service by Publication, the Petitioner publishes the Summons with Notice or the Summons and Verified Compliant in the English language in a newspaper that is most likely to be seen by the missing spouse.
The publication must be once a week for three weeks, and Summons and Notice of Publication must also be mailed to the missing spouse on or before the first day of publication unless “with due diligence” the address cannot be determined.
The first publication must be within 30 days of court approval, and an Affidavit of Service, which affirms that the publication happened, must be filed within 20 days of the last publication. The spouse must be served within 120 days of the filing of the divorce action. The missing spouse has 30 days from the service by publication to respond.
If the missing spouse fails to respond, the court considers the action uncontested. The Plaintiff can schedule a hearing to finalize the action.
New York Service by Publication is described in New York Civil Practice Law and Rule § 315, 316.
This is a common question asked by litigants, but it is not easy to give an answer because there are many variables that must be considered, including the conduct of the other party and/or their willingness to settle, delays caused by the courts in processing your paperwork, or delays in court if you and your spouse are unable to reach a deal without litigation. It is not possible to determine how long the divorce process can take until the divorce process is over and the judgement of divorce is signed by the judge presiding over the case.
However, these basic guidelines will help you understand how the process works. If you and your spouse are on amicable terms, and are able to sit down with or without attorneys and work out a deal, then it is simply a matter of filing the papers with the court, which entails waiting for the county clerk’s office to process your paperwork and then waiting for the judge to process and sign the judgement of divorce. Depending upon how busy the local clerk’s office is and also depending upon how busy the judge is, this process can take as little as three weeks or as much as 10 months.
Truth be told, very few cases in this field are resolved quickly. Many a time, a litigant will come to us, retain us and advise us that everything is “agreeable” between the litigant and their spouse, but this is rarely the case. The vast majority of the time, there is one or more issues that are not agreeable and this leads to litigation. If a case is headed to court, then the amount of time taken to complete the case increases greatly. In some instances, the parties make one or two court appearances and eventually compromise and reach an agreement, when they ascertain the cost of court time and all of the prep work that this entails.
In the case where both litigants dig their heels in and are prepared to battle to the end, a divorce case can take 18 months to two years to complete, and sometimes more. In rare instances, a divorce action can drag on for 10 years or more. To give an example, I am currently representing a litigant who has been through a half dozen attorneys and has been litigating her divorce case for 12 years going on to the 13th year!
More commonly, a litigated divorce action consists of the following:
- Discovery – This phase of the case is when the litigants exchange financial documentation and try to pry whatever information they can about the other’s finances during the marriage. Discovery is commenced with the first court appearance, which is called the preliminary conference. At the preliminary conference, the court and attorneys set up a schedule for the rest of the case and file a statement of net worth, which provides the court with a snapshot of your financial situation. Normally, discovery will take two to four months, which includes document demands and exchange of documentation, issuing subpoenas if you feel that your spouse is hiding financial documentation, and finally a deposition, where your attorney can sit down with your spouse and ask questions about financial matters before a court reporter.
- The discovery phase can be sidetracked by motion practice, which includes asking the court for financial relief by way of motion. Examples of the type of relief requested include temporary custody of the children, temporary child support, asking your spouse to pay the marital bills during the pendency of the case, or even asking for your spouse to pay for counsel fees. Often, this type of motion requires a hearing, as the judge handling your case wants to assess credibility by watching you and your spouse testify under oath.
- Cases are often sidetracked when one spouse files a family offense petition against the other or obtains an order of protection. This may lead to one spouse being arrested and then that spouse has to deal with criminal court proceedings along with the pending divorce action. This may delay a case while things are sorted out in the criminal court or family court.
- Once discovery is complete, the case can be certified for trial at a pretrial conference. You must then file an updated statement of net worth and other documents to get your case placed on the trial calendar. However, your judge may not have trial dates available until six months to a year after the pretrial conference, during which time period the case will stay dormant until you get to trial.
- Once a case gets to trial, some judges will go day to day with the trial until it is completed, and others will schedule a couple of days and then adjourn the trial and have you come back to continue the trial several months later. This depends on the judge, their preference and their schedule.
- After a trial is finally completed, many judges request that post-trial memorandums are submitted, which outline each party’s respective position on each issue. It may take 30 to 90 days to complete the post-trial memos, depending on how much work the post-trial memo entails.
- Once the post-trial memos are submitted, then you must wait until the judge renders a decision. This may take 30 days to a year, depending on how fast the judge gets to decide your case. The litigants and attorneys have no control over this, so it could be a while before you know what the outcome of your trial is.
- If a party is not happy with the judge’s decision after trial, or with any decision made during a divorce case, then that party has the right to appeal. If an appeal is done during the case (prior to trial), it could delay a case for months on end while you wait for the appellate court to render a decision. Normally, the appellate division takes three to 10 months to issue a decision on appeal.
As discussed in detail above, a divorce case can be resolved quickly or it could take several years to complete. It is difficult to predict how long it takes to obtain a divorce in New York, unless you choose to control your own destiny and settle your case without litigating. The amount of time it takes to complete a divorce case, or any litigation for that matter, depends upon many factors, some of which cannot be controlled by the litigants or attorneys.
In many cases, it makes more sense to reach a settlement that you are slightly unhappy with rather than spend thousands of dollars litigating, because the benefit reached by taking the case to trial may not outweigh the cost. And, most importantly, it is likely that you will not be pleased with the court’s decision, because there are no landslide victories in divorce cases. Divorce courts are courts of equity, not courts of equality, so the judge will do what is equitable (not equal) and try his best to balance things out so that neither you nor your spouse is completely happy. More likely, both you and your spouse will be unhappy with the end result, especially when considering the amount of money you spent litigating.
The best advice that I can give is to try your best to control your divorce case by reaching an agreement as quickly as possible. Once you get entangled with the court system, the movement of your case will be at the mercy of the court’s schedule, which is not predictable and often overloaded with other cases. So, as any matrimonial judge or lawyer will tell you, if you walk away from a divorce agreement a little unhappy, it was probably a good agreement.