Separation Agreements

If you and your spouse decide to live separate and apart, but you do not want to divorce, you can enter into a separation agreement. A separation agreement is a written agreement that you and your spouse voluntarily sign without involving the court. Often, a separation agreement can allow you and your spouse the time apart you need while you try to repair a marriage that may be falling apart.

A separation agreement gives you the opportunity to work out problems, slowly and over time, without the pressure of a divorce action hanging over your head. Once a divorce action is begun and placed on the court calendar, you and your spouse will have to attend court conferences and meet specific deadlines. That pressure is avoided by both of you signing a separation agreement.

As part of the separation agreement, you and your spouse may decide on a number of important issues, such as child support and spousal support (called maintenance). As with other marital agreements, a written separation agreement will clearly set out the rights and obligations of you and your spouse, both during and after the separation. If one spouse fails to live up to the obligations in the separation agreement, the other spouse can enforce the separation agreement in court.

More importantly, especially when there are minor children of the marriage, a separation agreement allows you and your spouse to work out the details of custody and visitation in advance, as well as provide for child support and additions to child support (called add-ons), such as health insurance, education and daycare for children.

Although New York law now provides for a no-fault divorce), if you or your spouse can establish that you have lived separate and apart under a written separation agreement and have complied with the provisions of that separation agreement for more than a year, then you may obtain a judgment of divorce on that basis alone. A no-fault divorce only requires a sworn statement that there has been an irretrievable breakdown of the marriage for six months or more. The separation agreement can also be submitted as part of a divorce decree, if you or your spouse decides to seek a divorce on the no-fault ground, rather than wait the required year to seek a divorce based upon having lived separate and apart under the terms of a separation agreement.

While you may make generous provisions for children in a separation agreement and try to decide custody and visitation issues, you may not limit or avoid your obligations to support your minor children. You should remember that the issues of custody, visitation and support of children are always before the court for consideration and can be challenged whenever the circumstances require a modification.

While separation agreements are presumed to be valid, you or your spouse may challenge the separation agreement for certain reasons, including:

• Separate attorneys – you and your spouse should always have separate attorneys if you are going to enter into a separation agreement. If you do not have separate attorneys, the court will look at your separation agreement more closely for unfairness and may not enforce the separation agreement.
• Fraud – if you or your spouse fails to disclose your assets honestly or if you hide your assets, a court may not enforce the separation agreement.
• Coercion/duress – if either you or your spouse uses pressure to get the separation agreement signed, or you are not given  enough time to consider the separation agreement, the court may not enforce the separation agreement.
• Unfair and inequitable – if the separation agreement favors you or your spouse unfairly, leaving the other spouse with little or nothing; the court may not enforce the separation agreement on the grounds that it is unconscionable and should not be enforced.

If you and your spouse begin living separate and apart under a separation agreement, you are free to get back together at any time. A separation agreement generally becomes invalid and void when you begin living together again with an intent to reconcile. However, your separation agreement can say that it is not void if you start living together again and will normally have a provision which indicates that you can void the agreement by a second separate writing stating that your separation agreement is invalid, void and signed by both spouses before a notary public in proper form.

If you and your spouse end up getting divorced, there are several things that can happen to the separation agreement, depending on how it was written. First, the separation agreement could say that it becomes part of the later divorce judgment. This is called merger. When a separation agreement provides that it merges into the divorce judgment, the separation agreement no longer exists as a separate and enforceable contract after you get divorced and may be more easily subject to modification.

Next, the separation agreement can say that it survives as a separate agreement after the divorce judgment. This is called survival. When a separation agreement survives a divorce judgment, the agreement remains valid and is enforceable, separate and apart from the terms of the divorce judgment. In such circumstances, a court may not modify the separation agreement’s provisions regarding maintenance unless “extreme hardship” is shown by the person seeking a modification and it will be more difficult to modify the child support provisions set forth in the separation agreement.

A separation agreement can also say that some parts are merged into the divorce judgment, but that other parts survive the divorce judgment. However, it is standard practice that the entire separation agreement would not be merged into the divorce judgment, but would survive the divorce decree and can therefore be enforced separately.

Legal Editor: Pasquale J. Crispo, January 2015 (updated July 2020)