When spouses encounter marital problems, they may consider separation as an option for dealing with them. Not every separation ends in divorce; some couples decide to stay legally married for religious reasons. No matter the underlying cause, you may decide that separation is preferable to a long, drawn-out divorce. During the process of deciding whether to separate, you and your spouse may consider an informal arrangement or a legal separation. As the two of you weigh those options, you may wonder whether a separation agreement can be enforced.
Two Types of Separation Agreements: What’s the Difference?
Before determining whether they can be enforced, it’s important to understand the two different separation agreement types. First, there’s an informal agreement between spouses. Although an informal agreement must be put into writing, the court does not get involved.
Second, there’s a legal separation agreement that can only be created through the courts. Different processes are required to judicially enforce these different kinds of separation agreements, and a local divorce or family attorney can help you choose the right agreement for your situation.
Does New York Have a Residency Requirement for Legal Separation?
The answer to that question is complex. There’s no residency requirement if, at filing time, both spouses are New York residents and the reasons for the separation arose in the state. Otherwise, you have to meet one of two requirements:
Informal Agreements Between Separating Spouses
As long as it’s been correctly prepared and fully executed by both spouses, an informal separation agreement is a legally binding contract. Simply put, assuming that the agreement has been written and signed by both parties, you or your spouse can file a court case requesting damages or enforcement in the event of a breach. Here, a separation agreement is handled much like any other type of contract dispute.
Legal Separation Agreements Through the Court System
If you and your spouse reach a separation agreement as part of a legal proceeding, there’s no need to go back to court to request contract enforcement. Rather, if you believe your spouse has breached the agreement’s terms, all you need to do is to file a motion for enforcement.
When separation agreements are made during courtroom proceedings, the court adopts the contract as part of the decree or court order in the case. Therefore, if either spouse breaches the separation agreement, they aren’t just violating the contract’s terms; they’re violating the court’s orders as well.
State Laws on Legal Separation and Contracts
New York’s laws generally govern contracts and specifically govern separation agreements. Furthermore, you should note that not every state has a separate proceeding for a legal separation. In states other than New York, if you and your spouse want to separate, you’d do so informally and outside the court system.
Dating During a Separation
Dating during separation may give the other spouse grounds for divorce under state law. In the state of New York, only a notarized, signed separation agreement or a court order gives you the right to live apart and separate from your spouse. Therefore, dating immediately after a physical separation (not a legal one) will give your spouse a reason to file for divorce.
It’s Important to Be Proactive About Separation
When your spouse violates the terms of a legal or informal separation agreement, it’s important to proactively protect your rights and your interests. Indeed, even if the breach seems relatively minor, you should remember that it’s a slippery slope. In some cases, if a spouse gets away with one violation, they’ll continue to push the envelope with further violations of the separation agreement’s terms and conditions.
If you’re considering a separation from your spouse, it’s in your best interest to consult an attorney. A legal separation and divorce lawyer can give you information on your options in the state of New York. Generally, attorneys do not charge fees for initial consultations. If you’ve already gotten a separation agreement, whether it’s formal or informal, you should seek legal advice if you think it’s been breached.
An experienced, skilled separation lawyer can advise you on the right steps to take to protect your interests. If you’re thinking of separating from your spouse, you’re strongly advised to retain counsel in the very beginning. With a lawyer’s help, you can draft a separation agreement that will help you (and your spouse) avoid future problems.
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