Rachel Alexander, ESQ.
New York Divorce Mediation
Alexander Mediation Group is a professional divorce mediation firm serving couples and families throughout New Jersey, New York City, and the Hamptons. Our mediator can help you work through your divorce's financial, emotional, and legal issues.
Rachel Alexander, ESQ.
Alexander Mediation Group
Rachel Alexander is a family law attorney and professional mediator specializing in family-related matters. For over 20 years, Rachel has handled various family law cases, including divorce, child custody, child support, prenuptial agreements, and more. Learn more about Rachel.
New York Mediation and Legal Separation Agreements
Legal Separation in New York
In New York, spouses who wish to live separately may do so through a Separation Agreement or, in certain circumstances, through a Judgment of Separation issued by the Supreme Court.
A Judgment of Separation is obtained through a court action commenced by one spouse. The action must be based on a legally recognized ground for separation, and the court may issue a judgment directing the spouses to live separate and apart.
A Separation Agreement, by contrast, is a contract between the spouses. It establishes the terms of their separation and may address matters such as finances, property, maintenance, parenting, custody, and child support. The spouses negotiate and execute the agreement voluntarily; it is not granted by a court. The spouses may negotiate the agreement directly, with the assistance of their attorneys, or through mediation.
For couples who are able to reach mutually acceptable terms, mediation can provide a structured process for creating a Separation Agreement without commencing a court action. The agreement can then be reviewed by each spouse’s independent attorney before it is signed.
Some spouses prefer separation to divorce because divorce changes health coverage eligibility and other financial arrangements. Parties should confirm those consequences with the appropriate plan administrator and individual advisers before relying on the continuation of an entitlement.
New Jersey follows a different separation structure. Couples should not assume that the same process or document applies in both states.
Decide Whether Legal Separation Fits the Current Situation
A Legal Separation Agreement allows spouses to live apart under a written arrangement while remaining married. Some couples use separate while working towards reconciliation. Others use separation as a defined period of transition while they decide the best next step, or prepare for divorce.
Define Responsibilities During the Separation
A complete Legal Separation Agreement states how the family will operate while the spouses live apart. Parents need a parenting schedule, a process for sharing parenting obligations and a format for making decisions on the children’s behalf. Discussions of these issues can incorporate Child Custody Mediation and Child Support Mediation.
Spouses may also need to define maintenance, household expenses, and use of the marital home. Property, debt, separate budgets, and insurance coverage may require written decisions as well. Mediation can incorporate Alimony and Spousal Support Mediation, Equitable Distribution Mediation, and Healthcare and Insurance when those subjects apply.
Complete New York Signing and Filing Requirements
New York law requires a marital agreement to be in writing and signed by both spouses, with each signature properly acknowledged before a notary. If the agreement is intended to serve as the basis for a later divorce, it must be executed and filed in accordance with New York law. Complete financial disclosure enables each spouse to make informed decisions about the proposed terms before signing. Each spouse should also have a meaningful opportunity to have the agreement reviewed by independent counsel.
Plan How the Separation Agreement Will Affect a Later Divorce
A Legal Separation Agreement does not end the marriage. Neither spouse may remarry unless and until a court enters a Judgment of Divorce. In New York, a Legal Separation Agreement is called “a written agreement of separation.”
Under current New York law, spouses may use a properly executed and filed Legal Separation Agreement as the basis for a later divorce. To proceed on this ground, the spouses must have lived separate and apart pursuant to the agreement for at least six months, and the spouse seeking the divorce must demonstrate substantial performance of the agreement’s terms. The agreement must be filed with the clerk of the county in which either spouse resides, or an authorized memorandum of the agreement may be filed in its place.
The Legal Separation Agreement may provide the foundation for a later Stipulation of Settlement. Before proceeding with a divorce, however, the spouses should review the agreement to determine whether its provisions continue to reflect their circumstances and intentions. They must still complete the divorce process and obtain a Judgment of Divorce.
New York currently recognizes seven statutory grounds for divorce: (1) cruel and inhuman treatment; (2) abandonment for one year or more; (3) imprisonment for three or more consecutive years; (4) adultery; (5) living separate and apart pursuant to a judgment or decree of separation for at least six months; (6) living separate and apart pursuant to a written separation agreement for at least six months, with substantial performance of its terms; and (7) irretrievable breakdown of the relationship for at least six months.
Couples who have resolved all issues required for the divorce may be able to proceed with an Uncontested Divorce. An uncontested divorce still requires a court submission and a Judgment of Divorce; the parties’ agreement does not itself dissolve the marriage.
Monthly Divorce Support Groups
A welcoming space for individuals navigating divorce, separation, or the contemplation of significant relationship change.
New York Mediation FAQ
Are We Still Married After Signing a Legal Separation Agreement?
Yes. A Legal Separation Agreement allows spouses to live apart under an enforceable written agreement, but it does not dissolve the marriage. Neither spouse may remarry unless a court later grants a divorce.
Because the marriage continues, each spouse should confirm how separation affects insurance coverage, taxes, estate planning, and other individual concerns with the appropriate adviser.
Can We Create a New York Legal Separation Agreement Through Mediation?
Yes. Mediation gives both spouses a structured process for addressing what the Separation Agreement must include. Souses exchange relevant information, work through unresolved subjects, and develop the provisions of a complete Legal Separation Agreement.
The mediator works with both spouses, as a neutral facilitator, without representing either party. Both spouses receive the final agreement, and are advised to obtain independent legal advice before signing.
How Does a Legal Separation Agreement Differ from a Judgment of Separation?
A Legal Separation Agreement, also referred to in New York law as a written agreement of separation, is a contract that the spouses voluntarily enter into to establish the terms under which they will live separately. It is distinct from a Judgment of Separation, which is issued by the Supreme Court in a judicial action. A written agreement of separation is not required in order to obtain a Judgment of Separation.
A spouse seeking a Judgment of Separation must commence an action in Supreme Court and establish a legally recognized ground for separation. New York law provides several grounds, including cruel and inhuman treatment, abandonment, failure to provide support, adultery, certain imprisonment, and irretrievable breakdown of the marital relationship for at least six months. The court may then issue a judgment of separation.
Whether the spouses proceed by agreement or through a court-issued Judgment of Separation, they remain married and neither may remarry unless and until a Judgment of Divorce is entered. Couples may wish to obtain independent legal advice before choosing the approach that is appropriate for their circumstances.
Must a New York Legal Separation Agreement Be Filed?
A Legal Separation Agreement is a contract between the spouses. It becomes legally binding when it has been properly executed by both spouses, including the required acknowledgment before a notary. The agreement does not need to be filed with the court simply to make it binding between the spouses. New York Courts explains that a Separation Agreement is not something the court grants; it is an agreement the spouses enter into themselves. The agreement may, however, be filed with the County Clerk.
If the spouses intend to use the agreement as the basis for a later divorce under Domestic Relations Law § 170(6), the agreement or an authorized memorandum must be filed with the County Clerk in the county where either spouse resides. The spouses must then live separate and apart pursuant to the agreement for at least six months after its execution, and the spouse seeking the divorce must establish substantial compliance with the agreement’s terms. New York’s current divorce forms expressly require these elements.
Thus, filing is not what makes a Separation Agreement a binding contract between the spouses. Filing becomes important when the spouses intend to use the agreement as the statutory ground for a later divorce under DRL § 170(6). If the spouses do not wish to file their Separation Agreement, they may instead proceed under another statutory ground for divorce. In many cases, spouses proceed under DRL § 170(7), which provides for divorce based on the irretrievable breakdown of the marital relationship for at least six months, provided that one party states under oath that the relationship has broken down irretrievably and the required economic and custody issues have been resolved by the parties (or, in non-mediated cases, determined by the court) and incorporated into the Judgment of Divorce.
Can a Legal Separation Agreement Become the Divorce Agreement?
A Legal Separation Agreement may provide the foundation for the financial, property, and parenting terms of a later divorce. When the spouses are ready to proceed with a divorce, they may determine that the provisions of their Separation Agreement continue to reflect their circumstances and intentions, or they may agree to revise provisions in light of changes in parenting, income, housing, property, insurance, or other circumstances.
A Legal Separation Agreement does not itself dissolve the marriage and does not automatically become a Judgment of Divorce. The spouses must satisfy the applicable statutory and procedural requirements and obtain a Judgment of Divorce from the court.
If the spouses intend to use their Separation Agreement as the statutory ground for divorce under DRL § 170(6), they must have lived separate and apart pursuant to the agreement for at least six months, substantially performed its terms, and satisfied the applicable filing requirements. Alternatively, the spouses may proceed under another statutory ground for divorce, including DRL § 170(7), based on irretrievable breakdown of the marital relationship for at least six months and the satisfaction of the statutory requirements.
If the spouses have reached agreement on all issues required for the divorce, they may be able to proceed through an Uncontested Divorce. Even in an uncontested divorce, however, the court must enter a Judgment of Divorce; the Separation Agreement itself does not terminate the marriage.
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