We signed separation agreement in 2004 but never filed it in court. Now I'm ready to file for divorce. Can I use signed but not filed separation agreement to start uncontested divorce proceeding? From what I understand agreement has to be filed first, can I file it now and start divorce right away? If I file agreement now, do I get the Index No and then proceed with divorce on that Index no by filing Summons? Thanks
I would consult with a NY attorney before going forward. The judge is likely going to require something from the other party if the separation agreement is now six years old.
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That wouldn't make much sense. Speak with and retain an attorney, you are making the process way more complicated than it needs to be. My firm handles these cases in NY.
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Family Law Attorney
As you say, the first step is to file the Separation Agreement. When a person files a separation agreement, the person is are required to purchase the Index No. that will then be used in the divorce. The index number is usually stamped onto the Separation Agreement and a receipt given to the person. Typically, a person can then just complete and submit the uncontested divorce package, based on the terms of the Separation Agreement. However, if the Separation Agreement is missing information that is required by law or if something else in the law or in the situation has changed substantially in six years, the court may require completion of additional documents. A consult with an attorney who has experience in filing divorces in Brooklyn (or where ever you are) would be well worth it.
* This information is general legal information and is not intended to be advice on your particular case.
You can file the agreement at any time prior to or during the divorce. You will need to the file the original, not a photocopy. As long as it was signed by both of you before a notary it is a valid agreement. When filing the divorce papers, both the plaintiff's affidavit and the defendant's affidavit should reference the separation agreement and state that you want it to be "incorporated into but not merged" with the Judgment of Divorce. That will cover you. I do, however, always recommend that people hire an attorney for a divorce. Many people do it themselves successfully, but I see a lot of paperwork that isn't prepared properly and it gets kicked back which is frustrating and just prolongs the process. Using an attorney may cost more, but it is worth it to have it done right the first time around.
You can file immediately based upon the new no fault ground under DRL 170(7) and use the Separation agreement in the divorce. Your paperwork and defendant's affidavit will have to reference it and ask that it's terms be incorporated by reference. Or you can file the Separation agreement and wait the year.
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The Agreement did not need to be filed in 2004. You can file the Agreement now and obtain a divorce based on living separate and apart pursuant to the Agreement. If your spouse agrees with filing for divorce now, it will be a conversion divorce, which is a relatively easy process. My office handles conversion divorces statewide through our website at www.NYDivorceNow.com.