Here’s the
short answer to the above question: a
Separation Agreement is the best remedy for a couple that does not want to get
divorced right away but rather wants to begin living separate lives. In my 16+
years of practicing law & working in this extremely tricky &
emotionally charged field of law, I’ve learned many lessons about divorce &
Family Court practice, but none more important than the following: each & every divorce & Family Court
case comes with a unique set of personalities, different number of children (or
no children), different levels & types of emotions including abandonment, jealousy,
self-pity, scorn, anger, selfishness & sometimes revenge as well. In my opinion, all of the above emphasizes the
fact that each & every divorce (& Family Court) case requires that the
lawyer work hard to achieve a unique situation for that particular case. You’ll
never see a client blow up his/her own house (just to prevent the other party
from getting his/her equitable share of that asset) in the areas of personal
injury/accident cases, Immigration law, worker’s comp., medical malpractice, or
any other area of law, trust me.
For an article like this, a lawyer always
has to include the following required language: prior results Do Not guarantee a similar
outcome in the future. There’s no doubt that my comments may be construed
as legal advice, but my thoughts are just expressions of my opinion based upon
my having worked hard in these 2 very difficult areas of law for years.
So if a couple
wants to begin living separately without getting divorced, why not just live
apart (or even under the same roof) without actually signing a written
agreement? Far & away the #1 reason I’ve seen is so that one spouse can
continue enjoying medical coverage (dental, optical, etc.) under the other
spouse’s plan. This coverage will continue until the document called the Judgment
of Divorce has been signed by the Court. In fact, once a divorce case has been
filed in any county in NY State (regardless of where the husband &
wife currently live, if they live together or if one spouse has already moved
out), you’ll find that many employers’ Personnel Depts./Dept. of Human Resources
will refuse to allow a married employee to remove his/her spouse from the
current medical plan or even to allow that employee to decrease the level of
coverage for his/her spouse until that employee shows proof that a Judgment of
Divorce has been signed.
In NY, anytime
a divorce case is filed with the Clerk of that County & served upon the
defendant spouse, the ‘Notice of Automatic Orders’ advising both spouses of
what I’ve just described must be attached to the Summons & Complaint (or
‘Summons with Notice,’ an alternate & quicker way to file a divorce case). The
‘Notice of Automatic Orders’ & the 2 other required pages that are required
to be attached to all newly filed divorce cases (& then served upon the
defendant spouse) are marked below as pages 5, 6 & 7 (see the top middle of
each page). Pages 1 to 4 are the typical contents of a Separation Agreement for
a couple with at least 1 child.
In NY, once
both married people have signed a Separation Agreement, it must be recorded
with the County Clerk just like a real estate deed, mortgage, etc. Then after 1
year (or more) has passed, either spouse can ‘convert’ the Separation Agreement
into a Judgment of Divorce. This is not a 5 minute process because it requires that
additional paperwork be typed out with the correct information & properly filed
with the Court, Almost the exact same paperwork that is required if either
spouse had decided to file for divorce immediately instead of opting for the
Separation Agreement option. My opinion is that if a couple that enters into a
Separation Agreement does not have a child, Yes it might be possible for that
couple to convert, meaning complete, the process of divorce on their own but it
can still be tricky. But for a couple that has at least 1 child, my opinion is
that it will be very difficult for either spouse to convert the Separation
Agreement correctly so that a Judgment of Divorce can be signed by the Court
without any delays. Let me explain why:
Perhaps the largest disadvantage of entering into
a Separation Agreement is that the Supreme Court (the only Court in NY that can
sign a Judgment of Divorce) does not review the Separation Agreement. In fact,
No Judge/Referee from the Supreme Court even flips open 1 page in any
Separation Agreement that is recorded with the County Clerk. Therefore, at
least 1 year later (or more) when 1 of the spouses wants to obtain a Judgment
of Divorce based on that Separation Agreement, only then does a Judge/Referee from
the Supreme Ct. get the chance to review the contents of the Agreement, referring
to the topics of equitable distribution, custody & visitation a/k/a
parenting time, child support, life insurance for the child(ren) in case
the non-custodial parent dies, the topic of emancipation all need be addressed.
Then there are even Discretionary Topics that can be resolved when at least 1
unemancipated child is involved such as the ‘add-on’ expenses (summer camp,
music lessons, tutoring, etc.) & other topics. I believe that even the most
experienced divorce lawyers will tell you that the process of First, getting
the spouses to agree on each of these topics and then Second, reducing the
parties’ understanding on each topic to individually written provisions will
always be an extremely difficult process.
In NY, there is no such thing as ‘suing your spouse’ for a
Separation Agreement; no such case law or statute exists to achieve this. But
it is true that in some rare situations, 1 of the spouses will file a divorce
case but the parties will end up discontinuing the divorce case so that they
can enter into a Separation Agreement. This re-emphasizes the obvious truth
that entering into a Separation Agreement is 100% voluntary & cannot be
forced.
In NY, the
only document that officially ends the bonds of marriage is called the Judgment
of Divorce, meaning that no other document in NY can officially end a marriage.
A Separation Agreement does not officially end a marriage. Even the signing of
the traditional written agreement After a typical divorce case has been filed
(the ‘Stipulation of Settlement,’ not a Separation Agreement) does not end the
marriage. In my years of practice, I’ve learned to Not use the term ‘unofficial
end to a marriage’ because it just does not make sense to me. Some married
people stop living together & cease all communication years & years before
1 of them finally files for divorce, so I’ve learned that a divorce case is
over only when the Judgment of Divorce is signed & not 1 day before. (No document
issued by the NYS Family Court can dissolve a marriage.)
Since Separation Agreements are the
exception, not the rule, between 2 married people who want to separate, they
require a high level of cooperation, meaning that both parties should respect each
other & be amicable during the negotiation & writing-out process. I’ve never
finalized a Separation Agreement when there has been a discernable amount of
hostility & tension between the spouses. It makes the process of achieving
a well-written Separation Agreement all the more difficult because neither spouse
nor his/her lawyer can seek Court intervention for a Separation Agreement.
Generally speaking, the attorney fees for the prep. of a Separation
Agreement are much lower than those associated with the full-blown divorce
process. Regarding the issue of how much time the process will take before both
people finally sign it, I’ll say that in general terms, the process goes faster
than the typical contested divorce process. But I’ve also seen spouses argue &
bicker for months over the small details before the final version of the Separation
Agreement is signed.
For example, if the 2 spouses sign a Separation Agreement
(notarized as well) & the Separation Agreement is recorded, just like a
Deed, on May 1, 2015, both spouses are required to wait until at least May
1, 2016 before either spouse can ‘convert’ it into a Judgment of
Divorce. Once the entire ‘uncontested divorce packet’ (including the not-yet signed
Judgment of Divorce) is filed with the Court, the delays for the processing time
are different for each county/borough in NY. Even this topic requires a
separate article, which is another reason why this area of law is so difficult
& frequently not handled very well.
Getting Divorced Right Away
New York was the very last state to join the other 49
states in enacting ‘no-fault’ divorce. On Oct. 12, 2010, NY enacted a new prong
(‘subsection 7’) to the statute known as Domestic Relations Sec. 170. Now in NY
so long as a couple has been married at least six (6) months, either spouse can
swear/affirm that so long as he/she believes that the marital relationship has
‘irretrievably broken down for at least six (6) months,’ if & only if that
the spouse who files the divorce case has met the jurisdictional (‘residency’)
requirements, that spouse will eventually obtain a Judgment of Divorce against
the spouse. What is important to remember is that this new prong (NY DRL Sec.
170(7)) was intentionally written as a Subjective Test, meaning that so long as
the spouse who files for divorce believes, in good faith, that the marriage has
‘irretrievably broken down for 6 months or more, it will be virtually
impossible for the defendant spouse to defeat this cause of action so that
he/she can preserve the marriage. YES it is true that prior to Oct. 2010, in
rare situations a spouse who had been sued for divorce would hire a lawyer to
try to get the entire divorce case dismissed. I did some research for the time
period Oct. 2010 to early 2016 but I wasn’t able to find 1 successful defeat of
a divorce case (by a defendant spouse) when the divorce case was filed based
upon DRL 170(7).
In NY, the spouse that files a divorce case is called the
plaintiff and it will cost that spouse $210 to file the divorce case (to
purchase the index number). Then in NY, once a new divorce case is filed, the
plaintiff or his/her lawyer has 120 calendar days (meaning including holidays
& weekends) to have the defendant spouse served in person. In the first 30
days, as a force of habit I normally contact the defendant spouse on my own in
order to avoid the use of a process server. Nobody wants to be served in
person, by a process server, at the job or out in the public; it is a highly
embarrassing & upsetting experience. But after the 1st month if
I see that the defendant spouse refuses to contact me or do anything, at that
point I normally use my process server to deliver the documents.
I have much
more to write about the divorce process in NY, but I realize that this article
is getting very long. I hope that you’ve found this information helpful or at
least interesting to read about. It’s my opinion that the areas of divorces
(contested & uncontested) & the closely related area of Family Court
practice are, by far, the most difficult & challenging areas of law that
I’ve ever worked in. Even my high school friend whose divorce case I handled
put it like this: ‘if the lawyer gets 1
word wrong in the Agreement, he can be sued.’ And that is 1000% true.
Thank you
for reading this material & I hope that you’ve found this Article to be
helpful & interesting! The information &
materials you see here have been prepared by The Law Office of Henry Lung, PC
for general informational purposes only. None of the contents of this Article should
be considered to constitute legal advice or a legal opinion.
Therefore,
The Law
Office of Henry Lung, PC cannot make any representation or warranty regarding
any of the information contained in this Article. You should not rely or act
upon any information provided in this Article without first consulting with an
experienced lawyer. It goes without saying that I must disclaim any
responsibility in connection with any actions that someone decides based upon
your reliance upon any portion of this Article.
If you have commentary about any portion of this Article,
feel free to email me at HenryLungPC@gmail.com or call me at (888)
539-2015 / (516) 248-8253.
