According to a study, since the advent of no fault divorce in New York, divorces based on separation agreements are down. This is really not surprising.
In the old days (until about 4 years ago) to obtain a divorce, you had to allege and prove fault grounds; living separate under a written agreement for a year was one of the more innocuous grounds. All the issues of the divorce were resolved and no one had to be guilty of marital fault ( doing something bad).
Now, in order to obtain a no-fault divorce in New York, all you have to do is allege that the marriage has irretrievably broken down for six months with no prospect of reconciliation. No fault need be assessed.
The separation agreement still has some role in New York divorce practice. It allows a couple to separate and move on with their respective lives, yet remain legally married. The primary reason for this is to allow a spouse, who would otherwise be without health insurance, to remain on the other’s insurance policy as a spouse.
Though separation agreements are not being used as basis for a divorce, they are still being used. The agreement, synonymous with a stipulation of agreement in a divorce action, resolves all of the issues in a divorce, including the division of assets, maintenance, child custody and child support. All these issues need be resolved to obtain a no-fault divorce.
