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Is there a difference between a legal separation and a separation agreement under NY divorce laws?

New York, NY |
Filed under: Divorce Adultery

Is there a difference between legal separation and a separation agreement (which will be converted to a divorce after a year)? Will I be entitled to health insurance by my husband's employer either way? My case is in NYC, NY.

Attorney Answers 3


Entering into a separation agreement in New York means you are working your way to a divorce based upon the ground of "living separate and apart pursuant to a separation agreement". An action for divorce can be commenced one year after you enter into such an agreement.

The advantage of this ground is that it kills three birds with one stone: grounds, custody and finances. All three are decided up front and contained within the separation agreement.

The big fraud typically pulled with these is when one spouse is culpable for something but doesn't want it to come up during a divorce. For example, if a wife committed adultery, but does not wish to be adjudged an adulteress during a divorce, she can maneuver her spouse into a "stipulation" terminating the action and converting it to one based upon a separation agreement. The action is withdrawn by stip and then refiled in one year cleansing the erring spouse of adultery (or any of the other adverse grounds).

"Legal separation" is not the phrase used in New York practice. New Yorkers say that they are living separate and apart pursuant to a separation agreement. That's because there is no court involvement up front. There is only the agreement. The court comes in when it is time to file for divorce based upon the separation agreement. So there is nothing "legal" about the separation except to the extent that if you breach the agreement and make up, the agreement fails and you lose that year. You'll have to make a new agreement.

Ordinarily, you will lose health coverage upon divorce. You will have to get COBRA benefits and then eventually get your own. Your children, however, will continue with the former spouse's coverage if he had one. Many spouses get maintenance from which they buy coverage.

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I'm confused by paragraph 3; please re-phrase in layman terms. I'm advising my little sister to enter into a separation agreement and file it with the court or the clerk to protect herself and her small children. Her spouse has been having an affair recently and now wants to separate. Would the agreement have an adverse effect if divorce occurs? What's the difference is it's no fault or adultery?

Peter Christopher Lomtevas

Peter Christopher Lomtevas


If you are not a lawyer, I would watch out in dispensing legal advice even if it is your own sister. As to the effect of adultery on a divorce, we are such a gross and vulgar society that no one cares who committed adultery or who did not. So in practical terms, it does not matter whether you file a divorce grounded in adultery or one grounded in no fault, Remember that the law in New York changed in October, 2010. New York now has a no fault provision. So you do not need a separation agreement to serve as a basis for a ground for divorce in New York just as you do not need to allege and prove adultery. Where an adultery allegation may have some weight is if that fault was "egregious". That could result in a bigger financial win in divorce court, but the chances of proving how an affair was egregious are quite slim. Lastly, the court will protect the child no matter the level of fault.


In terms of obtaining a divorce, technically either can be converted to a divorce, provided the separation agreement has been filed with the Court at least one year before the divorce action is commenced.

You are only entitled to health insurance through your husband's employer if your husband agrees to provide you with health insurance in a separation agreement or legal separation decree, and then you're eligible for COBRA benefits for 18 months. Then you'll have to obtain your own insurance.

I hope this answers your questions.

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Legal separation and separation agreement essentially mean the same thing, assuming the parties have signed an agreement that settles all of the issues related to the marriage. If you are separated, medical insurance coverage can continue. This is actually one of the main reasons spouses choose separation instead of divorce.

However, the separation agreement needs to address the medical insurance issue so there is no ambiguity. After the agreement is filed and you wait one year, you can file the necessary documents to get divorced. Many couples delay doing the divorce in order to continue the insurance. Hope this answer is helpful.

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