Legal Discussion Board

Q. My spouse and I have been talking about separating. If I leave, am I giving up my rights to the house? If we decide to divorce, how do we proceed and how long does it take?

A. People often misunderstand the term "separation" as it relates to marriage under New York State Law. Often, people consider themselves to be legally separated because one party moves out of the marital residence. This is not, however, considered a legal separation and instead constitutes only a physical separation. To be legally separated you must have either entered into a written separation agreement or obtained a judgment of separation.

The simple answer to the first question is no; you do not give up your rights to ownership of the marital residence simply by leaving the house because New York Law provides for Equitable Distribution of marital assets in the event of a divorce. Equitable Distribution means the fair, but not necessarily equal, division of all property legally and beneficially acquired during the marriage by either party regardless of which party holds legal title. However, while you do not forfeit your interest in the residence, there are possible consequences.

First, if you leave but no longer contribute to the marital residence mortgage, upkeep, expenses, taxes or other "carrying costs," you may be subject to a claim by your spouse paying such costs that the asset should not be divided equally. Second, if you leave you are also exposed to a claim of "abandonment," one of the recognized grounds for divorce under New York State law. It should be noted that if there is a risk or threat of imminent physical harm, the above concerns should be set aside and you should not hesitate to leave the residence, call the police and/or seek the protection of the courts.

If a couple is considering separation, they are encouraged to reach a written agreement on the terms of their separation. Consultation with an attorney is recommended as an attorney can help guide his or her client through issues such as child support, spousal maintenance and division of assets.

In the event that you do legally separate (i.e., with a written separation agreement), after a year of living separate and apart pursuant to the terms of your agreement either you or your spouse may file for divorce under the "No-Fault" or conversion divorce provisions of New York State law. If you choose this option, you do not have to allege grounds for the divorce; otherwise, you must allege grounds in a divorce complaint.

The most commonly recognized grounds include cruel and inhuman treatment, abandonment for a period of one or more years and adultery. If you are both in agreement on getting a divorce, the "sued" spouse agrees not to contest the alleged grounds and you both have resolved all related issues, uncontested divorce papers may be filed with the court immediately and the divorce finalized by the court in approximately 10 to 12 weeks.