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Wednesday, April 10, 2013

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.