By Barbara King, Esq.

Choosing to separate from your partner is an emotionally fraught and logistically challenging decision. As a result, couples often use legal separation agreements to establish clear boundaries and responsibilities to arrange their soon-to-be separate lives.

But in New York state, is hiring a lawyer necessary for this process? The short answer is that, while it is not legally required, if you want an agreement that will withstand court scrutiny and protect your future, using a lawyer to prepare a separation agreement in New York is highly recommended to ensure your rights are protected.

What Is a Separation Agreement?

A separation agreement is a legally binding contract between spouses who choose to live apart but either do not want to divorce right away, or want to file for divorce, without the necessity of having a court hear and litigate their differences. It outlines key terms, such as custody/visitation, child support, equitable distribution of assets and debts, as well as rights of spousal maintenance.

This agreement allows couples to resolve conflicts and establish a foundation for co-existing peacefully during their separation and into a possible future divorce. For some, choosing to obtain a legal separation may serve as a precursor to seek a divorce; for others, it provides a long-term solution for remaining legally married while living independently. Importantly, a separation agreement affords you the opportunity to work out problems without the pressure of a divorce litigation and the unknown outcome from a judge hanging over your head.

While it is not necessary to divorce right away, once the agreement is signed and notarized, you or your spouse may opt at any time to file for a divorce based on your separation agreement.  The one-year waiting period called a “conversion” (Domestic Relations Law 170.6), is no longer necessary as New York has embraced no-fault divorce (the parties have irreconcilable differences for six (6) months or more).

Legal Requirements for Separation Agreements in New York

To be valid in New York, a legal separation agreement must meet several specific criteria:

• Written and signed: Both parties must agree to the entire separation agreement, and it must resolve all issues of property, including debt, children and support. Their signatures must be acknowledged in the presence of a notary public, in the manner required for a deed to be recorded. The separation agreement becomes legally binding as soon as it is mutually signed and notarized.
• Statutory requirements: Now that New York has spousal support guidelines, akin to child support guidelines, failure to accurately calculate and set forth the applicable formulas can result in an agreement being rejected by a Court. Agreements must specifically lay out the statutory and formulaic applications.
• Voluntary: Both parties must willingly enter into a separation agreement without coercion or duress and must substantially disclose all of their marital assets.
• Comprehensive terms: Issues like custody or visitation, child support, and property division must be addressed. If terms are left out, like how to divide a pension, the Agreement may be later rejected by the Court when one party moves for a divorce.
• Fairness and honesty. If you and your spouse do not have separate attorneys, the court will look at your separation agreement more closely for unfairness and may not accept the separation agreement. The court may also refuse to enforce the separation agreement if you or your spouse fail to disclose assets, knowingly or unknowingly. An experienced matrimonial attorney will counsel you on exactly what finances must be disclosed and counsel you on how to do so properly.

Failure to meet these requirements can render the agreement being rejected when you seek a divorce or be seen as unenforceable, leading to legal disputes down the line.

Risks of Creating a Separation Agreement Without Legal Help

Attempting to create and file the separation agreement without legal assistance can expose couples to significant risks. The language used in these agreements must be precise and unambiguous, as vague terms can lead to either rejection by a court or disputes over interpretation.

Moreover, most agreements will necessarily address complicated legal issues including but not limited to tax questions, debts, pensions and real estate. Without professional guidance, couples may unintentionally omit important provisions or lock themselves into provisions without fully understanding what they have agreed to and what their rights are.

A lack of legal knowledge may also result in non-compliance with New York’s Domestic Relations Law, rendering the agreement legally invalid. In some cases, one spouse may decide unknowingly to agree to inequitable terms, putting their financial stability or parental rights at risk.

How a Lawyer Can Protect Your Interests in a Separation Agreement

Hiring a lawyer for a separation in New York can provide invaluable protection and guidance. An experienced attorney can offer tailored legal advice, making sure the terms of the separation agreement align with New York law and your unique circumstances. With an attorney’s guidance, you can avoid potential errors or oversights that could jeopardize the agreement’s validity.

Lawyers also act as advocates, protecting your rights and interests, especially in sensitive areas like custody/visitation or the equitable distribution of marital assets. Additionally, a well-drafted agreement reduces the likelihood of future disputes, providing clarity and stability for both parties during the separation. Investing in legal representation not only safeguards your immediate interests but also helps secure a more stable and predictable future.

Key Provisions to Include in a Separation Agreement

A comprehensive separation agreement typically includes provisions including but not limited to:

• Custody and visitation: Outlining custody arrangements and parenting time schedules to prevent conflicts.
• Child support: Defining financial contributions for a child’s basic needs, education, and extracurricular activities.
• Equitable distribution: Detailing how marital property and debts will be divided.
• Spousal support: Specifying alimony payments, if applicable.
• Living arrangements: Determining whether one spouse remains in the marital home or if it will be sold.

Find the Right Family Law Attorney

Choosing the right lawyer can significantly impact the outcome of your separation agreement. Tully Rinckey attorneys have extensive experience in family law and a proven track record in drafting separation agreements. Read client testimonials and seek recommendations, and prioritize lawyers who take a personalized approach, investing time to understand your unique circumstances and goals.

If you’re ready to hire a lawyer for a separation agreement in New York, contact us to schedule a consultation today and take the next step to protecting your future.

Separation agreements require a deep understanding of matrimonial law, and working with an experienced matrimonial law attorney can help make the process smoother and more successful. If you believe it’s time for a separation agreement, contact us and speak with a New York matrimonial law attorney today, or call 8885294543 to explore your options and protect your future.

Barbara J. King, Esq. is a partner in the Albany office of Tully Rinckey, PLLC. For well over three decades, Ms. King has been representing parents, spouses and other parties, as well as clients, nationally and internationally, in a wide range of family and matrimonial matters.