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Sample New York Marital Separation
SEPARATION AGREEMENT
THIS SEPARATION AGREEMENT (the “Agreement”) dated this _____________of _____________, 20___.
BETWEEN:
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______________, _____________,
in the State of New York, _____________
-and-
________________
______________, _____________,
in the State of New York, _____________
- ________________ and ________________ (collectively the ‘Parties’ and individually a ‘Party’) were lawfully married on ______________ _________, ____________________, in ______________, New York. Due to certain differences that have developed between the Parties, they agree to live separate and apart from each other, subject to the terms and conditions in this Agreement.
- The Parties have made complete, fair and accurate disclosure to each other on all financial matters reflected in this Agreement.
- The terms of this Agreement are intended to settle the matters addressed, but it will not be incorporated into a final decree of divorce. The Parties agree that a subsequent separation agreement will have to be made and duly incorporated into a final decree of divorce.
- The Parties have each consulted an attorney with regard to his or her legal rights arising out of the marital relationship and the terms of this Agreement.
- The Parties have each voluntarily entered into this Agreement and have not been forced by anyone to sign this Agreement, and both Parties confirm that they are in sound mental health.
BACKGROUND:
IN CONSIDERATION OF the mutual promises and covenants contained in this Agreement, and other valuable consideration, the receipt and sufficiency of which consideration is acknowledged, the Parties agree as follows:
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LIVING SEPARATE AND APART
- The Parties have lived separate and apart since ________________________________. Neither Party will attend the other’s living space or work without invitation or approval.
- There is one child of the marriage, namely:
Name:
Date of Birth:
____________________
_____________ _____________, ____________________
- The Parties agree that sole legal custody is in the best interests of the child. The Parties agree that ________________ is granted sole legal custody, and has the primary right to decide regarding matters of health, education and welfare in the child’s best interests. ________________ may make emergency decisions affecting the health or safety of the child when the child is in her physical care and control. The Parties agree that the grant of sole legal custody to one Party does not deprive the other Party of access to information regarding the children.
- The Parties agree that the child will primarily reside with ________________.
- The Parties also agree that ________________ will have the following visitation time with the child:
- Regular visitation schedule:
______________________________________________ - Vacation visitation schedule:
______________________________________________
- Regular visitation schedule:
- ________________ will pay child support in the amount of $_________ monthly to ________________. Child support payments will commence on ____________ and will be paid on the _____ day of each and every month.
- ________________ will pay a total of $_____________ monthly to ________________ for the child’s uninsured health care costs, child care costs, and other additional costs, such as __________________________. Child support payments for these expenses will commence on _______________________ and will be paid on the _____ day of each and every month.
- The Parties agree that each will provide the other copies of their income tax return and any notices of assessment and re-assessment issued, on an annual basis.
- ________________ will maintain health insurances, including medical and dental coverage, for the benefit of ____________________.
- Subject to the laws of New York, child support payments, contributions to uninsured health care costs, child care costs, additional costs, and the maintenance of health insurance will continue as long as a child is under the age of majority and financially dependent on the parents.
- Neither Party claims entitlement to spousal maintenance. Both Parties expressly waive any claim to spousal maintenance now and in the future, regardless of any change in circumstances experienced by either Party.
- The Parties acknowledge that they have agreed upon a division of all assets, owned or possessed by them as marital property or separate property. The Parties are in possession of all of those assets to which each is respectively entitled. Accordingly, neither makes any claim to any assets in the possession of the other.
- The Parties agree that any indebtedness secured against, or attributable to, any item of property that either Party is receiving under this Agreement will be the sole responsibility of the Party receiving the particular property.
- Neither Party will incur any further debt or liability on the other Party’s credit. Any debt accumulated as of the date of this Agreement is the debt of the individual Party, regardless if the debt was incurred as a result of joint credit.
- The Parties will promptly sign and give to the other all documents necessary to give effect to the terms of this Agreement.
- This Agreement contains the entire agreement between the Parties about their relationship with each other. It replaces any earlier written or oral agreement between the Parties.
- Should any portion of this Agreement be held by a court of law to be invalid, unenforceable, or void, such holding will not have the effect of invalidating or voiding the remainder of this Agreement, and the Parties agree that the portion so held to be invalid, unenforceable, or void, will be deemed amended, reduced in scope, or otherwise stricken only to the extent required for purposes of validity and enforcement in the jurisdiction of such holding.
- The Parties may only amend this Agreement in writing after both Parties have obtained legal advice on the changes.
- In the event that a dispute arises regarding this Agreement, the Parties will try to resolve the matter through negotiation or mediation, prior to initiating a court action.
- Notwithstanding that the Parties acknowledge and agree that their circumstances at the execution of this Agreement may change for any reason, including but without limiting the generality of the foregoing, the passage of years, it is nonetheless their intention to be bound strictly by the terms of this Agreement at all times.
- This Agreement creates a fiduciary relationship between the Parties in which each Party agrees to act with the utmost of good faith and fair dealing toward the other in all aspects of this Agreement.
- The Parties agree to provide and execute such further documentation as may be reasonably required to give full force and effect to each term of this Agreement.
- The headings of this Agreement form no part of it, and will be deemed to have been inserted for convenience only.
- This Agreement will be binding upon and will enure to the benefit of the Parties, their respective heirs, executors, administrators, and assigns.
- If the Parties reconcile, the terms of this Agreement will remain in effect unless the Parties revoke it in writing.
- This Agreement may only be terminated or amended by the Parties in writing signed by both of them.
- The laws of the State of New York will govern the interpretation of this Agreement, and the status, ownership, and division of property between the Parties wherever either or both of them may from time to time reside.
CHILDREN
CHILD CUSTODY
CHILD SUPPORT
SPOUSAL MAINTENANCE
ASSETS
DEBTS
GENERAL PROVISIONS
IN WITNESS WHEREOF the Parties have duly affixed their signatures on this_____________ of _____________, 20___.
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ACKNOWLEDGMENT
THE STATE OF NEW YORK
COUNTY OF____________________
I, Attorney, within and for said County and State, do certify that on this day came before me, ________________, personally known to me, whose name is signed to the foregoing Separation Agreement and so acknowledged his signatures on this Separation Agreement and that ________________ entered into this Separation Agreement on his own free will and volition without force or duress by any Party.
Given my hand and seal this ___ day of ____________________, 20___.
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ACKNOWLEDGMENT
THE STATE OF NEW YORK
COUNTY OF____________________
I, Attorney, within and for said County and State, do certify that on this day came before me, ________________, personally known to me, whose name is signed to the foregoing Separation Agreement and so acknowledged her signatures on this Separation Agreement and that ________________ entered into this Separation Agreement on her own free will and volition without force or duress by any Party.
Given my hand and seal this ___ day of ____________________,20___.
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CERTIFICATE OF INDEPENDENT LEGAL ADVICE
THE STATE OF NEW YORK
COUNTY OF____________________
I, _______________________________, of the City of ___________________________, in the State of New York, Attorney, DO HEREBY CERTIFY:
THAT I was this day consulted in my professional capacity by ________________, named in the within instrument, being a Separation Agreement, separate and apart from ________________, as to his legal rights and liabilities under the terms and conditions of it, and that I acted solely for him, and explained fully to him the nature and effect of this foregoing Separation Agreement and he did execute it in my presence, and did acknowledge and declare that he was executing it of his own volition and without any fear, threats, compulsion or influence from ________________ or any other person.
DATED at the City of _________________, in the State of New York this ___day of _________, 20___.
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I, ________________, the person named in the annexed Agreement, hereby acknowledge the foregoing this ____day of ______________20___.
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CERTIFICATE OF INDEPENDENT LEGAL ADVICE
THE STATE OF NEW YORK
COUNTY OF____________________
I, _______________________________, of the City of _________________________, in the State of New York, Attorney, DO HEREBY CERTIFY:
THAT I was this day consulted in my professional capacity by ________________, named in the within instrument, being a Separation Agreement, separate and apart from ________________, as to her legal rights and liabilities under the terms and conditions of it, and that I acted solely for her, and explained fully to her the nature and effect of this foregoing Separation Agreement and she did execute it in my presence, and did acknowledge and declare that she was executing it of her own volition and without any fear, threats, compulsion or influence from ________________ or any other person.
DATED at the City of __________________, in the State of New York this ___day of _________, 20___.
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I, ________________, the person named in the annexed Agreement, hereby acknowledge the foregoing this ______day of ______________20___.
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Is Legal Separation Better Than A Divorce In New York
Which is the best exit strategy when your marriage hits rock-bottom? What to the New York family law courts have for you when you think that you can salvage it, or you both want to stay legally married at the end of the proceeding?
The ever dynamic New York family law system is as dynamic as the state, and this is why you can get a legal separation when you don’t want a divorce (yet).
How to obtain legal separation in New York
There are two ways to go about it.
First, you both enter into a New York Marital Separation Agreement. For the agreement to be acceptable, it must contain a certain language, and it should be signed and acknowledged in a certain way for it to qualify as a separation agreement.
You cannot, and you shouldn’t try preparing your own Marital Separation Agreement in New York. With the help of a family law attorney, have the separation agreement carefully drafted so that it accurately represents all your intentions and for it to be enforceable in future.
Secondly, you can get a Judgment of Separation. All the actions for this legal judgment of separation proceed in the same way as an action for divorce. The only difference between a legal separation and a divorce is that you remain married at the end of the Judgment of Separation. A divorce is final as it leads to the dissolution of your marriage vows.
Grounds for legal separation
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Just like in a divorce, you must have specific grounds for getting a Judgment of Separation according to the New York family law. Also, you should know that you can apply for legal separation after signing the legally binding Separation Agreement contract. Some of the valid grounds for a legal separation include:
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Abandonment
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Cruel and inhuman treatment
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Failure to offer support
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Imprisonment
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Adultery
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Consequences of not abiding by the separation agreement
Contrary to what you may think, a Marital Separation Agreement is a contract enforceable in a court. Contracts are legally binding. So, if your spouse fails to abide by the terms of the separation agreement, a money judgment is often sought and entered against him or her. The decision lies with you.
Why opt for a legal separation, not a divorce?
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Most married couples have hopes of reconciliation, hence the separation.
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Health insurance – some couples enter legal separation for one spouse to remain covered under their spouse’s health insurance policy. Staying on one medical plan, you save money.
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Disadvantages of legal separation
Although it may save you money or give room for reconciliation, legal separation and signing the Marital Separation Agreement in New York isn’t a walk in the park. Some of the disadvantages include:
Enforcement – getting a legal separation judgment is harder than getting a divorce judgment. In New York, you will find that a divorce judgment is readily enforced with a quick application to the court that issued the Separation Agreement. On the other hand, enforcement of a separation agreement is a whole separate lawsuit in which the breach is first proved in court at a full trial. With a trial involved, getting the separation will take months.
Also, if the trial is successful, the court provides limited relief in the form of a specific performance or even an award of damages. The remedies available for the violation of the separation agreement are tougher than those involved when there is a breach of contract, and you just file for a divorce instead.
Is divorce better than a legal separation?
If after the separation agreement things don’t work, you will have to decide whether to get a divorce or a legal separation. While we cannot tell you what to do, your religion may forbid divorce; it is clear from the discussion above that the separation agreement offers the necessary flexibility to help you settle the divorce. You can expedite the process by filling above given steps and get a copy of your sample marital separation agreement.
Whether you live in New York, Buffalo, Rochester, Yonkers, Syracuse, Albany, New Rochelle, Cheektowaga, Mount Vernon or any other city of New York, you can use our legal forms easily.
Sample
NY Marital Separation Agreement
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