Separation – NYC Divorce Attorneys

Matrimonial law in New York is based on statutory law and the concept of separation, was not part of the “common law” (principles of law that evolved over time to form the basis of our legal concepts). Under the common law a woman had to reside with her spouse and could not select a separate residence unless the Husband was guilty of wrongful conduct. That concept has been replaced and the law now permits for a married women to live separately from her husband.

New York permits a party to sue for separation on the grounds of cruel and inhuman treatment, abandonment, refusal to support, adultery or confinement to prison for three years. To obtain a judgment of separation, the plaintiff must prove his/her claim in a court of law. Once proven, a court will grant a judgment of separation, which can include provisions for spousal and child support, custody and the other ancillary financial issues, other than equitable distribution, which can only be granted if there is a divorce or termination of the marriage. Separation does not end the marriage but only allows the parties to live apart without being considered to have abandoned the other. Since the parties are still married, although legally separated, they can still be culpable of committing adultery, which has both civil and criminal law implications (despite the fact that criminal prosecution for adultery in New York is extremely rare).

Choosing separation rather than divorce is often a choice of conscience, religion or matrimonial law strategy.