Do You Need to Be Legally Separated Before You Can File for Divorce in NY?

Nothing about divorce is simple, no matter how much couples want it to be. Besides being physically and mentally daunting, the judicial process can be both costly and complex. For example, do couples need to go through a legal separation before filing for divorce in New York?

Because of the complexity of the judicial side of divorce, couples should not do it alone. They need a divorce attorney even if the process doesn’t end up in court. Attorneys are necessary for a more successful mediation or negotiation.

But back to the question: should couples be legally separated?

The Differences Between Legal Separation, Annulment, and Divorce

Marital breakups are confusing because of the terms associated with them. These include legal separation, annulment, and divorce. They may sound alike, but they have significant differences:

A. Legal Separation

Legal separation means the couples decide not to live together or continue being husband and wife. However, they remain married to each other – at least on paper.

Legal separation may not be voluntary for all parties involved because the court can mandate it if one spouse has committed an act that causes danger for the other spouse or their children. The judge may also order a legal separation if domestic violence or other issues interfere with the marriage or cause harm to one of the spouses.

B. Annulment

Annulment is when the couple’s marital status has been deemed void by a judge. They are not considered legally married after being declared nullified. The annulment process revokes their marriage license and releases them from all obligations to each other.

Annulments may be granted for different reasons, including:

  • Underage (minor) status
  • The inability of both spouses to give consent for marriage due to mental incapacity, intoxication, or duress
  • Fraudulent marriage
  • Bigamy

C. Divorce

Divorce is the legal process of terminating a marriage. To file for divorce, couples need to be separated and ready to move on from each other. The judge grants a divorce decree, which legally ends the marriage.

Divorce involves several judicial processes, such as the following:

  • Filing for divorce
  • Formulating a marital settlement agreement
  • Scheduling and holding hearings
  • Drafting and reviewing court documents
  • Judicial approval of settlement terms

Should You Be Legally Separated to File for Divorce?

woman and lawyer

The answer is both a yes and a no. Legally separated couples can file for divorce, especially if they have been in this situation for a year or two. They don’t need to be physically separated – that is, living in different houses – before the court can grant the legal separation. They just need to show that they’ve stopped living as husband and wife.

However, couples who are not legally separated can still consider divorce right away if they experience the following:

  • Abandonment – Abandonment means that one spouse is gone and has no intention of returning to the marriage. Usually, you can already make this a ground for divorce if the spouse has abandoned the other for at least a year.
  • Irreconcilable Differences – Irreconcilable differences imply that the couple cannot agree on most things about their marriage. These can include issues related to the children, property, or financial matters.
  • Physical/Mental Cruelty – This usually happens if one spouse is physically abusive or psychologically tortures another with words.
  • Mental Incapacity – This usually happens if one spouse cannot understand or care for their responsibilities in the marriage.
  • Adultery – If either party has committed adultery, one can add it as a ground for annulment or divorce. This is especially true if there’s been love and affection between the third person and the other spouse.
  • Drug and/or Alcohol Addiction – If one spouse is an alcoholic or a drug addict, then one can file for divorce. Even threats of violence because of alcohol and drug use may be grounds for annulment or divorce.

Note, though, that New York is one of the states that also follow a no-fault divorce since 2010. It means that a couple can get a divorce without proving that either party is at fault for the marriage’s failure. The no-fault divorce does not need grounds, but it may have them if one spouse wants to claim that there were irreconcilable differences or abandonment.

So what is the answer? Couples can try legal separation before filing for divorce in New York. If they are in this scenario, they have to be legally separated for at least a year. However, because the state also follows a no-fault divorce, those who want to move on officially can do so anytime. Can they reconcile, though? Yes, they can, regardless of whether they are already legally separated or divorced.

Scroll to Top