By Brian Figeroux, Esq.

In New York State, separation before divorce depends on the type of divorce being pursued. While no-fault divorce does not require a mandatory separation period, some couples may choose legal separation as a pathway to divorce. The required separation time varies based on whether the divorce is based on separation agreement, court-ordered separation, or no-fault grounds.

This article analyzes the waiting periods and legal requirements for separation before divorce in New York.

1. No-Fault Divorce: No Separation Required

Since 2010, New York allows no-fault divorce, meaning that a couple does not need to prove fault or be separated before filing for divorce. The only requirement is that the marriage must have “irretrievably broken down” for at least six months.

Key Points About No-Fault Divorce:

• No need for separation before filing.
• One spouse must claim the marriage has been broken for at least six months.
• All financial and custody matters must be settled before the divorce is finalized.

Because no-fault divorce does not require prior separation, it is the fastest and most common way to get divorced in New York.

2. Separation-Based Divorce: One-Year Requirement

Couples who prefer to separate before divorcing can pursue a separation-based divorce, which requires living apart for at least one year. There are two ways to do this:

1. Divorce After a Legal Separation Agreement

• Spouses sign a legal separation agreement, outlining division of property, child custody, and support.
• The agreement must be notarized and filed with the county clerk.
• After one year of living separately, either spouse can file for divorce based on the separation agreement.

1. Divorce After a Court-Ordered Separation

• One spouse sues for a judicial separation in court (rare in modern cases).
• If the judge grants legal separation, the couple must live apart for one year.
• After a year, either spouse can file for divorce based on separation.

Most couples prefer no-fault divorce over separation-based divorce because it is faster and requires less legal action.

3. Why Choose Separation Before Divorce?

Some couples choose legal separation before divorce for reasons such as:

• Financial benefits (e.g., health insurance, tax advantages).
• Religious or personal beliefs against immediate divorce.
• Time to reconcile before making the divorce final.

However, legal separation is not required for divorce in New York.

Conclusion

• No-fault divorce does not require separation—spouses can file if the marriage has been broken for six months.
• A separation-based divorce requires one year of living apart under a legal separation agreement or court order.
• Legal separation is optional and often used for financial or personal reasons.

For most couples, no-fault divorce is the quickest and easiest option in New York.