WHAT IS A LEGAL SEPARATION?

One of the most common questions I get asked is:  "What is a legal separation" along with, "what is the difference between a separation and a divorce?  Let's start with what a "legal separation" means in New York State.  This refers to a document, executed in the form that would entitled a deed to be recorded, which settles all issues which would be addressed during a trial, except for grounds for divorce.  Thus, it would cover custody, child support, maintenance, equitable distribution and legal fees.  A separation agreement is the document which is executed by both parties, typically drawn by a lawyer advocating for one party.  There must be a total agreement on all issues.  This comes under the category you can lead a horse to water but you can't make a horse drink.  Thus, you may have the best of intentions, wanting an amicable agreement, but if the other person is not on board, that person will not execute the agreement.  However, once an agreement is executed, you have a CONTRACT.  Thus, if there are important issues which may need to be enforced some day, such as support or installment payments, you may want to take it further and convert the CONTRACT into a judgment of divorce.  Otherwise, if the other party does not comply, your only remedy is to sue on a breach of contract.  Whereas if a party does not comply with a judgment of divorce, there are legal remedies, such as contempt of court.

FAMILY COURT PROTECTION FOR PERSONS IN "INTIMATE RELATIONSHIPS"

People may not be aware, but should be, that the Family Offense Statute, which is implemented in both Family Court and the criminal courts, now includes protection for people in "intimate relationships."  The original statute limited Family Offense protection to victims that were narrowly defined.  To bring a family offense petition, the original statute required the Petitioner to establish a "family" relationship, defined as spouse, parent, sibling, etc., or have a child in common.  This necessarily left out persons involved in "intimate relationships" such as same sex couples, domestic partners, boyfriend-girlfriend situations, and even senior citizens who often choose not to re-marry because they wish to preserve inheritance rights for their grown children and grandchildren.  The definition of a Family Offense now includes persons involved in "intimate relationships."  A court will look at the nature and type of relationship (need not be sexual), the frequency of interaction and the duration of the relationship.  Casual acquaintances and ordinary relationships are specifically excluded from the statute.  

From the Office of Prevention of Domestic Violence:  "In domestic violence cases, an order of protection can be issued in criminal and/or civil court. The civil venue for these proceedings in New York State is 

Family Court; domestic violence victims must fall within the Family Court‘s personal jurisdiction, and then the allegations must fit within the ―family offense‖definition, described below, in order for the victim to request a civil order of protection.

Domestic Violence is Legally Defined by a Combination of Relationship and 

Behavior.  New York State does not define ―domestic violence‖ for criminal court and Family 

Court proceedings. Instead, New York State uses the term ―family offense‖ to 

capture certain crimes3 when they are committed between ―family or household 

members.‖ Before the 2008 Expanded Access amendment, ―family or household 

members‖ included persons: related by consanguinity (blood relatives) or affinity (through marriage); 

married or formerly married; or with a child in common. Individuals who were married to, formerly married to, or had a child in common with the person who had abused them, were eligible to petition for an order of 

protection in both criminal court and Family Court. Those who fell outside of that 

definition could proceed in criminal court, but were not eligible for Family Court. 

Limitations of New York’s “Family Offense” Structure

Over the years, New York State‘s laws have provided increasing protections for

those domestic violence victims who fell within the ―family or household member‖ 

definition. However, those same protections did not extend to many other victims.  A victim seeking a divorce, separation, or annulment, can also request an order of protection in another civil court, Supreme Court.  Family offenses/crimes: disorderly conduct, harassment in the first degree, harassment in the second 

degree, aggravated harassment in the second degree, sexual misconduct, forcible touching, sexual abuse 

in the third degree, sexual abuse in the second degree as set forth in subdivision one of section 130.60 of 

the penal law, stalking in the first degree, stalking in the second degree, stalking in the third degree, 

stalking in the fourth degree, criminal mischief, menacing in the second degree, menacing in the third 

degree, reckless endangerment, strangulation in the first degree, strangulation in the second degree, 

criminal obstruction of breathing or blood circulation, assault in the second degree, assault in the third 

degree or an attempted assault.   Many people felt that the definition inappropriately excluded 

a large number of similarly situated victims from access to a critical civil remedy, including dating or unmarried couples, same sex couples, and adolescent and many elder couples, and that the definition no longer reflected the nature of families and households 

today. 

The 2008 Expanded Access Law

In 2008, New York State expanded its legal definition of ―family or household 

member‖ to include, ―…persons who are or have been in an intimate relationship 

regardless of whether such persons have lived together at any time.‖4 For the 

purposes of this report, we will refer to these newly qualified individuals as 

―intimate partners.‖5 This change in definition means that intimate partners now 

have the same legal rights and protections as victims who were already covered 

by the law. These benefits include the following:

an intimate partner victim can seek an order of protection from Family 

Court in addition to, or instead of, pursuing criminal court options;

the court must enter the order into the statewide Order of Protection and 

Warrants Registry, which police consult when called to enforce an order of 

protection; police officers must, when responding to a domestic violence complaint, 

complete a Domestic Incident Report (DIR), regardless of whether a crime 

is alleged or an arrest is made, and must provide the victim with a copy;

police officers must make an arrest according to the mandatory arrest

provisions for family offenses in the Criminal Procedure Law § 140.10(4); 

and police officers must determine which party is the primary physical 

aggressor when two parties both allege domestic violence misdemeanors. 

The law enumerated factors the court may consider in determining whether a relationship is an 

"intimate relationship," including, but not limited to: the nature or type of relationship, regardless of 

whether the relationship is sexual in nature; the frequency of interaction between the persons; and the 

duration of the relationship. The law also clarified that “Neither a casual acquaintance nor ordinary 

fraternization between two individuals in business or social contexts shall be deemed to constitute an 

’intimate relationship.’"

This is a definition of convenience for this report: ‘intimate partner’ is commonly used to refer to a 

broader category of individuals that includes married and formerly married and those with a child in 

common.NYS Expanded Access Report October 12, 2011

This change impacted other legal areas that reference the family or household

definition as well, such as: 

enhanced criminal contempt charges that apply only to violations of family 

offense orders of protection;

alternative voting options that maintain the confidentiality of the victim‘s 

address; and

protections against workplace discrimination based on an individual‘s 

status as a domestic violence victim.

Since most enhanced provisions in domestic violence-related laws reference the 

family or household definition, future laws will likely utilize this more inclusive 

definition of victim of domestic violence. For example, during the 2011 legislative 

session, the Social Services definition of ‗victim of domestic violence‘ was 

amended to include the new category of ‗intimate partner.‘6 Social Services laws 

and regulations had already included unrelated individuals living in the same 

household or having regular access to one another‘s household, but adding the 

intimate partner category created a more comprehensive definition, so that all 

individuals who are eligible for a civil order of protection have corresponding 

eligibility for residential and non-residential domestic violence services."