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I have a legal separation. (NY) I want to get divorced before one year is up.

Coram, NY |

I am in NY and just entered into a legal separation. I will like to know if I can file for divorce before the year is up now that new york has irretrievable breakdown. One lawyer has said yes I can file even a short time after i signed the legal separation. Another says I have to wait a year. I really would like to file before the year is up so I can get married.

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Attorney answers 7

Posted

If you meet the residency requirement there is no need to delay for a year.

Under the rules governing the conduct of attorneys in New York it may be necessary to remind you that this answer could be considered attorney advertising.

Posted

Under the old law you needed the year after the separation agreement as grounds for the divorce. If you have other grounds (such as the marriage is irretreviably broken) you do not have to wait. You should speak to a local attorney to review your situation.
Howard E. Knispel, Esq.
Commack, NY
631-864-7589

The above is a general answer and is not considered legal advice. You should contact an attorney before proceeding to take any legal action, signing any papers or upon service of a summons. Howard E. Knispel 631-864-7589

Posted

Yes. There is no need to wait any specific amount of time before proceeding with a divorce provided you have been married for greater than 6 months and meet the NY residency requirements.

Please note that this general response to your inquiry does not establish an attorney-client relationship.You should consult with a competent attorney for advice regarding your particular situation.

Posted

Your question seems to have been answered by some great counsel here. I wish you the best of luck and I think you'll be fine.

Legal disclaimer: The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of Massachusetts. Responses are based solely on Massachusetts law unless stated otherwise.

Posted

You may file now.

Posted

Well, you can file based on an irretrievable breakdown BUT, you will only be granted a divorce if all custodial and financial issues are settled. As it appears you have settled them, the Separation Agreement can just be signed again as a Stipulation of Settlement - However, if you file, your spouse may not look to kindly upon it and contest all the issues.

Susan Kathleen Duke

Susan Kathleen Duke

Posted

If all issues are settled by the separation agreement there will not be anything to contest.

Douglas Shaun Kepanis

Douglas Shaun Kepanis

Posted

Although that would be the usual case, sometimes an attorney will not put the proper language therein stating that, in the event one of the parties decides to file for a divorce on other enumerated grounds, that the Separation Agreement shall then automatically become a Stipulation of Settlement in settlement of all custody and E/D issues. However, if that language is not placed therein, and a party files based on other grounds, one could argue that the only reason they entered into the SA was based on the fact they would wait to file for one year- it could become a question of fraud in the inducement...but, that is a cynics point of view.

Douglas Shaun Kepanis

Douglas Shaun Kepanis

Posted

I am trying to be on the lookout for someone who would contest it as being against the legislative intent.

Asker

Posted

I am in the same situation. I have a legal separation, done through mediation without lawyers involved. I am happy with the agreement but ex may want to dispute at divorce. Would it just be better for me to wait the year to file for divorce so that the agreement becomes grounds for divorce, could he still dispute it later? What if he decides not to sign it again?

Posted

You can file now under DRL 170(7) irretrievable breakdown if you meet NY residency requirement. If it is a valid separation agreement, then it can be used as a post nuptial agreement to resolve the issues of the case. See a local experienced divorce lawyer to help you.

If this answer is helpful, then please mark the helpful button. If this is the best answer, then please indicate it. Thanks. For further information you should see an attorney and discuss the matter completely. If you are in the New York City area, then you can reach me during normal business hours at 718 329 9500 or www.mynewyorkcitylawyer.com.

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