Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Feb 27, 2020

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If you’re having marital difficulties and are considering a separation agreement, it’s smart to know how they work in general, how they affect filing for a divorce and how they are created. Our New York legal expert provides that information in a nutshell.

How separation agreements work

A separation agreement is an agreement that parties enter into voluntarily, according to Elliot Schlissel, a New York divorce lawyer who has been assisting clients for over 30 years in the New York metropolitan area and in Long Island’s Nassau and Suffolk counties. However, he says that there’s one key factor concerning separation agreements that many people overlook:

The base of the term separation agreement is in the term agreement. Unless both parties wish to voluntarily enter into this agreement, you can’t have a separation agreement. You cannot obtain one unless your spouse is willing to go along with the terms and conditions of the agreement’ regarding financial issues, division of property, residential and custodial terms.

Here’s how they work’ A husband and wife who are having marital difficulties can, without having any court intervention, retain counsel and draft a separation agreement. The agreement deals with issues of child support, custody, spousal maintenance or alimony, division of property, who gets the house and visitation issues. Generally speaking, one parent then moves out and establishes a separate residence after the execution of the agreement.

How separation agreements affect filing for divorce

Schlissel told us that if the parties live pursuant to the terms of the separation agreement and abide by its terms for one year, either party can then move in the Supreme Court in the State of New York for a divorce with the ground being that they have lived separate and apart pursuant to a written agreement of separation and that they have abided by its terms.

How to create separation agreements

A separation agreement is not something that people can casually put together on their own, according to Schlissel, who says that it is a complicated, sophisticated document that has detailed requirements regarding its terms, the way it’s laid out and how it’s executed. He explained:

It should only be drafted by a qualified matrimonial and family law attorney who is familiar with these types of agreements. Our office has been drafting separation agreements for over 30 years. We have literally drafted hundreds of separation agreements and we have never had any of our agreements set aside by a court.

Schlissel warns that if you enter into a separation agreement without counsel and it is a defective agreement, it is unenforceable; it is basically as if the agreement didn’t exist. An experienced divorce lawyer can evaluate your situation and answer any questions you might have about the process’ and most offer a free consultation.