When you and your spouse separate, sometimes it's best to make efforts to enter into a Separation Agreement. A separation agreement is a contract between you and your spouse that can include spousal support, child custody, visitation rights, and a division of the property acquired during the marriage. The agreement can be enforced by courts if one spouse does not comply. If the spouses later divorce, it may be included in the divorce judgment.
The Separation Agreement is a detailed contract which should be prepared by attorneys. In this agreement, the spouses agree to live separate for the rest of their lives. The agreement should contain the respective rights and duties of husband and wife with respect to the Child Custody and Visitation Rights, Support Payments, Distribution of Property, and all other matters pertaining to the marital relationship.
Certain vital formalities must be carefully followed, or the written agreement will not qualify as a ground for divorce.
The agreement, or a memorandum of separation, is filed (with complete confidentiality) with the Clerk of the County in New York where either spouse lives. At the end of one year from the date of the agreement, either spouse may sue the other for a "no-fault" divorce. There is no requirement that at the expiration of one year, that either spouse must file for divorce.
All that must be proven to the New York Court is that the agreement was duly executed and acknowledged and was properly filed; that the spouses have in fact lived apart during the period of the agreement up to the time of the divorce action; and that the Plaintiff has substantially complied with the terms of the separation agreement.