Separation
Conversion of separation agreement
In New York, when a married couple voluntarily enters into a properly acknowledged separation agreement and then waits at least one year, they can be divorced. A defense to this ground for divorce exists if the agreement is so one-sided as to be considered too unreasonable to be enforced or if the agreement was the result of fraud, duress or incapacity to contract. In a 1982 case a New York Court found a separation agreement “patently unconscionable” and denied the divorce where a wife of twenty-two years had agreed to give up all claims to the husbands assets, which, at that time, were estimated at over two million dollars.
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Conversation of Judgment of Separation
In cases where the parties do not enter into a separation agreement voluntarily, one spouse can sue the other for separation. The grounds for separation are similar to those required for divorce with some important exceptions. If the basis for separation is abandonment, there is no requirement that the abandonment has continued for at least a year. In addition it is possible to sue for separation based on nonsupport. If one spouse has the means to support the other at the marital standard of living, and yet, refuses to do so, the unsupported spouse can sue for separation based on nonsupport.
After the parties obtain a judgment of separation at least one year must pass before a divorce on this basis can be sought. Once the year has passed, either spouse can seek a divorce.
