Procedures For Converting a Separation Agreement Into a Divorce Under New York Law412204

Pursuant to New York's Domestic Relations Law, Section 170.6, a duly executed and acknowledged separation agreement may be used as the basis for a divorce on or after its one-year anniversary. When a divorce is obtained in this manner, it is referred to as a divorce." The one-year time period runs from the proper execution of both husband's and wife's signatures before a public, not from the agreement's filing date. A separation agreement cannot take into account, for purposes of calculating its maturity, any time spent already separated prior to the agreement.

The legal requirements applicable to the execution and acknowledgment of separation agreements in New York are strictly enforced. New York's Domestic Relations Law requires that a separation agreement be subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be filed in New York State. The acknowledgment, which appears at the end of the agreement, should be in substantially the following form:

STATE OF NEW YORK, COUNTY OF NEW YORK ) SS.

On the day of _______, 20____ before me, the undersigned, a Public in and for said State, ___________ personally appeared personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.

Notary Public

Frequently, individuals belatedly discover that separation agreements that were executed outside of New York cannot be used as the basis for a New York conversion divorce because of the different form of acknowledgment that is used in other jurisdictions. The drafting of a separation agreement should be overseen by an experienced New York divorce attorney.

The agreement must be filed in the county of residence of either Plaintiff or Defendant. Filing of the separation agreement is normally done prior to the commencement of the divorce action, but may be done simultaneously. It may also be done simultaneously with submission for placement on the court's Uncontested Divorce Calendar (which is accomplished by filing a Note of Issue). In any case, the circumstances under which the agreement was filed must be accurately stated in the pleadings. If a separation agreement is used as the basis for a divorce, the pleadings and other court papers should contain the following language:

Plaintiff and Defendant have lived separate and apart pursuant to a written agreement of separation. The agreement has been acknowledged by both parties in the manner required for a deed to be recorded. The agreement has been filed with the County Clerk of ________ County on (prior date) or has been filed simultaneously with the summons and complaint, or has been filed simultaneously with the note of issue. Plaintiff has substantially performed according to the terms of the agreement.

A single copy of the agreement must be attached to the pleadings when submitted to the court for placement on the uncontested divorce calendar. For more information click here.