If you and your spouse decide to live separately and separately, but they do not wish to divorce, you can enter into a separation contract. A separation agreement is a written agreement that you and your spouse voluntarily sign without including the court. Often, a separation agreement can allow you and your spouse the time you need while you try to repair a marriage that may disintegrate. As you take generous precautions for children in a separation agreement and try to decide on custody and visitation issues, you should not restrict or circumvent your obligations to help your minor children. You should keep in mind that custody, home visit and child assistance issues are always dealt with in court and may be challenged whenever circumstances require a change. A separation agreement may also mean that some parties are merged into the divorce judgment, but other parties survive the divorce decision. However, it is common practice that the entire separation agreement is not merged into the divorce judgment, but has survived the divorce decision and can therefore be applied separately. If you and your spouse divorce at the end, there are several things that can happen with the separation agreement, depending on how it was written. First, the separation agreement could mean that it will be part of the subsequent divorce judgment.
This is called merger. When a separation agreement provides for a divorce order, the post-divorce separation agreement is no longer considered a separate and enforceable contract and can be changed more easily. If you and your spouse start living separately and separately under a separation contract, you can meet at any time. A separation agreement usually becomes invalid and void if you start living together again, with the intention of reconciling. However, your separation agreement may mean that it is not null and void if you have cohabited again and that you generally have a provision that states that you can cancel the agreement with a separate second handwriting stipulating that your separation contract is null and void and signed in due form by both spouses before a notary. Under New York law, unless you have a separation contract signed with your spouse, probably not legally separated – even if you don`t live together. More importantly, especially when there are minor children in marriage, a separation contract allows you and your spouse to prepare the details of custody and visitation in advance and to allow for child care and child care supplements (called add-ons) such as health insurance, education and child care. Although New York law now provides for a no-fault divorce, if you or your spouse can prove that you lived separately and separated under a written separation agreement and have complied with the terms of that separation agreement for more than a year, you can obtain a divorce judgment on that basis alone.
