I got an email from someone who saw my ad on Craigslist asking me whether he had
to get a separation before he got a divorce in New York State. The answer is no. You can first get separated and convert that separation into a divorce a year later, assuming both parties have “substantially complied” with the terms of the separation agreement which must be on file with the court. (That means you must purchase an index number for $210.00 and have the agreement notarized and acknowledged and file it in the county where you live. Failure to do this means that you do not have an enforceable separation agreement.)
But it’s not that you have to get separated first before you can get a divorce. It’s just one of the ways to get a divorce. And it is a relatively simple way to get a “no fault” divorce in New York. It is our closest thing to “irreconcilable difference.” Meaning that, so long as both parties agree to separate, nothing further needs to be proved a year later. It doesn’t matter who did what.
But in New York there are other ways to end a marriage. The “grounds” for divorce in New York are: Abandonment (spouse left for one year or more); constructive abandonment (spouse stopped having sex with you for one year or more); imprisonment for three years or more; adultery; cruel and inhuman treatment; and separation agreement or separation judgment.
Why would someone want a separation first? People have their reasons. In some cases, maybe the parties are not sure they want to divorce. A divorce is so final. They want to have a practice run first, to see if that is what they want. So they agree to separate. In other cases, none of the other grounds are applicable to them. And there are other reasons to be sure.
But, no. You don’t have to get a separation first.
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