Grounds for a Judicial Separation in New York
by J. Douglas Barics
Updated April 2016
There are two ways to be legally separated under New York law. First, is to have a written separation agreement that is made in accordance with Domestic Relations Law 236B(3). The second way is is to obtain a judgment of separation.
An action for judicial separation is an matrimonial case between husband and wife pursuant to Domestic Relations Law 200 which does not dissolve the marriage, but seeks to establish a judgment of separation which may include additional relief such as custody, child support and maintenance. Unlike a divorce action brought under DRL 170, the parties remain married, and the court may not distribute marital property, as a separation is not one of the matrimonial actions listed in DRL 236B(5)(a).
Separation actions are a holdover from a bygone era when divorce grounds were far more limited. Prior to 1966, the sole ground for divorce was adultery. and even then, the Courts were without authority to award marital property until 1980.
Two remedies were available to a spouse in a failed or dead marriage, but who could not obtain a divorce through adultery. The first remedy was a wife could seek spousal support from her husband, similar to the right of a wife to obtain alimony. Note that prior to 1979, the right to support was only available to wives. Only after the Supreme Court case of Orr v Orr was support made gender neutral.
The second remedy was for a judicial separation, which was designed to provide some relief to a spouse in a dead marriage when they could not establish the sole ground for divorce. An action for a judicial separation was provided for in Domestic Relations Law 200, and if one or more of the grounds set forth there could be proven, a judge would issue a judgment declaring the parties legally separated and subject to the terms of the judgment of separation.
The five grounds for judicial separation under DRL 200 are as follows:
1. Cruel and inhuman treatment such that the conduct endangers the physical or mental well being of the plaintiff rendering unsafe or improper for the plaintiff to live with the defendant. DRL 200(1).
The same standards that apply to a divorce filed under cruel and inhuman treatment would apply to a separation filed under DRL 200(1).
2. The abandonment of the plaintiff by the defendant. DRL 200(2).
Abandonment consists of four elements:
(a) voluntary separation of one spouse from the other
(b) an intent not to resume cohabitation
(c) lack of consent of the other spouse
(d) no justification
The courts can constructively impose an abandonment claim based on the actions of the parties. See Diemer v. Diemer. The most common acts under which the courts constructs abandonment (called constructive abandonment) are as follows:
(a) One spouse locks the other spouse out of the marital home
(b) The actions of one spouse makes it impossible to live together
(c) Lack of sexual relations
3. The neglect or refusal of the defendant-spouse to provide for the support of the plaintiff-spouse DRL 200(3).
This is the only ground which does not have a mirror companion in a divorce action (DRL 170), and is the most common ground used for a separation action.
4. The commission of an act of adultery by the defendant. DRL 200(4).
Adultery means sexual intercourse. Like a divorce action, there are affirmative defenses to adultery which are (a) procurement (b) voluntary cohabitation after knowledge of the adultery; (c) within five years of the act of adultery (d) the plaintiff also committed adultery. These affirmative defenses are contained as part of DRL 200(4), as contrasted to a divorce action, where they are part of a separate section of the Domestic Relations Law (DRL 171). Under CPLR 4502, a spouse is incompetent to testify against the other spouse to prove adultery.
5. The imprisonment of the defendant to prison for three or more consecutive years after the marriage.
In any action for a separation, the court is without authority to distribute marital property under DRL 236 B(5), since there is no change to the marital status. See Adamo v Adamo. However, the court is authorized to make every other award that is available in a divorce action, including custody, child support, maintenance, and payment of attorney and expert fees. Note that the statute for post divorce maintenance, DRL 236 B(5-a), applies only when the marriage is dissolved, and would not apply to a separation. The Court would instead likely use the temporary support maintenance formula under DRL 236 B(5-a), which could continue indefinitely since no divorce is being granted, or it could apply FCA 412 to determine spousal support.
Judicial separations are almost unheard of in the twenty first century, and while it remains on the books, DRL 200 is largely an obsolete law.
The article "Grounds for a Judicial Separation in New York" is provided as a free educational service by J. Douglas Barics, attorney at law, and does not constitute legal advice. Legal advice may only come from a qualified attorney who is familiar with the facts and circumstances of a specific case.
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