Legal Separation & Conversion Divorce
Using a Separation Agreement to negotiate terms now and divorce later.
Not every marriage ends with an immediate divorce filing. For couples who agree that the marriage is over but are not ready to divorce—whether for health insurance reasons, religious beliefs, or simply a need to “cool off”—New York offers a powerful alternative: the Separation Agreement. If executed correctly, this agreement can not only resolve all your issues today but serve as the guaranteed basis for a divorce one year later.
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1. Negotiation: The parties negotiate all terms of the split (Custody, Support, Property) while still married.
2. Execution: The Separation Agreement is drafted, signed, and formally acknowledged (notarized like a deed).
3. Filing: The Agreement is filed with the County Clerk (Fee: $210) to obtain an Index Number.
4. The Cooling Off Period: The parties must live separate and apart for at least one year.
5. Conversion: After one year, either party may file for divorce using the Agreement as the specific ground (DRL 170.6).
1. New York’s 7 Grounds for Divorce
To get divorced in New York, you must state a legal reason, or “ground.” While most people today use the “No-Fault” ground (Irretrievable Breakdown), the law actually provides seven distinct options:
- Cruel and Inhuman Treatment
- Abandonment
- Imprisonment (3+ consecutive years)
- Adultery
- Living apart pursuant to a Decree or Judgment of Separation (DRL § 170(5))
- Living apart pursuant to a written Agreement of Separation (DRL § 170(6))
- Irretrievable Breakdown (“No-Fault”)
This guide focuses on Ground #6. Unlike Ground #5, which requires a lawsuit and a Judge’s order (a “Separation Judgment”), Ground #6 allows you to control the process privately through a contract.
2. The “Conversion” Divorce Process
A “Conversion Divorce” is essentially turning a Separation Agreement into a Divorce Judgment after a waiting period. This is the path for couples who can agree on terms upfront.
Step A: The Separation Agreement
This is a contract where you and your spouse agree to live apart. It must resolve the issues of the marriage, including:
- Child Support & Custody: You cannot ignore the kids. The court will not grant a divorce later if support guidelines aren’t followed.
- Equitable Distribution: Who keeps the house? The car? The pension?
- Spousal Maintenance: Will one party pay alimony?
Step B: The Formalities (The Trap!)
If the notary acknowledgment is missing or incorrect, the agreement cannot be used as grounds for divorce later. This is the most common mistake in DIY separations.
Step C: Filing & Fees
Once signed, the Agreement (or a Memorandum of the Agreement) should be filed with the County Clerk in the county where either party resides. The current filing fee is $210. This establishes the official start date of your separation.
Step D: The One-Year Wait
You must live separate and apart for one year after the agreement is signed. If you move back in together with an intent to reconcile, you may void the agreement and have to start the clock over.
3. Why Choose Separation Over Divorce?
Why wait a year? There are several strategic reasons:
- Health Insurance: Once a divorce is final, a non-employee spouse usually loses coverage under the other spouse’s plan. A Legal Separation allows the parties to live apart while maintaining insurance coverage (though you must check your specific policy).
- Religion: Some couples have religious objections to divorce but can no longer live together.
- Financial Stability: It allows parties to lock in financial terms now while emotional tensions cool, without the finality of a divorce judgment.
4. The End Game: Filing the Divorce
After the year has passed, either party can file a Summons and Complaint for divorce. The “Ground” for the divorce is simply that you have substantially complied with the terms of the Separation Agreement for one year. The terms of your agreement are then incorporated into the final Divorce Judgment.