Hello and thank you for your question.
If it has been agreed that the divorce will be accomplished by filing
a written separation agreement there's only one answer: You need to
make sure that the separation agreement covers all the issues,
financial and personal. But as discussed below, while the agreement
can allow 'dating' during the year apart it can't allow 'adultery.'
And that's a fine line! You can 'date' during the year; you surely
can't live together. When does dating become adultery? There's no
clear answer, so you'll certainly need to be discreet.
The written separation agreement is the best route for you, because as
long as you abide by its terms, the financial deal will have been
worked out in advance.
So the balancing act you need to do now is to be frank enough to get a
strong dating clause into the settlement agreement, but if this makes
her angry enough the wife may switch to the adultery route (with or
without a Court judgment of separation) that might leave the financial
settlement deal open until a later date. Nor can the settlement
authorize him to be adulterous during the year of separation.
Here's the background:
"There are different grounds for a divorce, separation, and annulment.
In the case of an absolute divorce, there are six (6) grounds for a
court to grant an absolute divorce:
abandonment for one or more years;
imprisonment for three or more years;
cruel and inhuman treatment;
one or more years separation a under written separation of agreement;
one or more years separation under a court judgment of separation.
Any one of these grounds, if proved, will result in the complete
dissolution of the marriage."
There are only two valid ways to dissolve a marriage in New York
through separation of agreements.
The law requires that you live apart for one or more years under
either a written contract of separation or court judgment of
separation. The separation agreement should clearly outline custody,
spousal support, distribution of property. The agreement is filed
with the clerk of the county where either spouse lives. At the end of
one year from the date of the agreement, either spouse may sue the
other for a "no-fault" divorce.
Another form of separation is through a judgment of separation.
Abandonment may be for less than one year and "non-support" is a
ground for decree of a judgment of separation.
One year after filing of the court's judgment of separation, either
party may sue for a "no-fault" divorce after one year of living
Grounds for Divorce in New York
So how frank can you be in the settlement agreement?
"In a separation agreement, a provision providing for the parties'
separation must be in the agreement, (i.e., 'The Parties will live
separate and apart as if such parties were single and unmarried.')
This is not, however, authorization to engage in adultery."
The Marital Agreement Primer (Parts 1, 2 and 3)
Here's how another writer puts it:
A Separation Agreement CANNOT legitimize adultery. Sexual relations
with a person who is not one's spouse is adultery, and no 'dating
clause' will serve to make legal something that is illegal. Most
separation agreements do, however, contain a clause that allows each
spouse to be left alone as if single and unmarried and that forbids
each spoue from harassing, molesting or interfering with th other.
Again, please advise that this is not a license for adultery."
ADULTERY AS A GROUND FOR DIVORCE
Search terms used:
"new york" divorce adultery faq
"new york" "settlement agreement" cohabitation
I hope you find this information useful at this difficult time. Of
course this answer cannot constitute legal advice--be sure to cover
these issues with a qualified attorney!
Google Answers Researcher
Request for Answer Clarification by
10 Nov 2003 08:16 PST
Richard (answer) & expert-law (comment) thank you both! One
clarification question (which you may or may not be able to address):
Within the mediation process for filing separation papers this week,
the wife is trying to have "adultry" on the part of her (yes military
vet.) husband put down as the reason for their divorce (btw: There was
NO adultery prior to his IN-formal separation, just a lunch, a kiss
and emails as old h.s.friends 25 years later, that made her kick him
out of the house and start toward divorce - true! Now of course it's
...She is arguing for him to claim adultery on their papers,
supposedly because this means they can finalize the divorce in 3
months instead of waiting the entire year. I'm concerned of the
possible ramifications. Does this "deepen" the potential dangers of
our continuing to see each other during the separation period (in
terms of a potentially inflamed wife deciding to disregard their joint
separtion agreement for financial distribution, and instead take the
adultery and use it to the full extent of the law for changing the
agreement? We live on opposite coasts, so to see each other we would
be meeting in the same house for extended periods of time over the
next 6 months.
Thanks if you're able to take this one step deeper -- and thank you so
much for your assistance and thoroughness as is and if you can offer
no more. I realize it's dicy and certainly appreciate that your
assistance does not consititute legal advice, just better information.
It's a romantic tale but with potentially frightening consequences
where hurt and anger are invoked and used against one another... the
world of love... Thank you!
Clarification of Answer by
10 Nov 2003 18:36 PST
There's no such thing as a 3-month divorce under a separation
agreement between the parties. Here's the law:
"S 170. Action for divorce. An action for divorce may be maintained
by a husband or wife to procure a judgment divorcing the parties and
dissolving the marriage on any of the following grounds
(6) The husband and wife have lived separate and apart pursuant to a
written agreement of separation, subscribed by the parties thereto and
acknowledged or proved in the form required to entitle a deed to be
recorded, for a period of one or more years after the execution of
agreement and satisfactory proof has been submitted by the plaintiff
that he or she has substantially performed all the terms and
of such agreement. Such agreement shall be filed in the office of the
clerk of the county wherein either party resides. In lieu of filing
agreement, either party to such agreement may file a memorandum of
such agreement, which memorandum shall be similarly subscribed and
acknowledged or proved as was the agreement of separation and shall
contain the following information: (a) the names and addresses of each
of the parties, (b) the date of marriage of the parties, (c) the date
of the agreement of separation and (d) the date of this subscription
acknowledgment or proof of such agreement of separation."
So the wife is not being truthful and there's a different reason she
wants to get the admission of adultery into the agreement. My guess
is either (i) she's just keeping the pressure on to keep him on the
defensive in the negotiation, or (ii) she thinks that having the
admission in the agreement will help her to upset the settlement
agreement if she can catch him being adulterous during the one-year
separation, or (iii) she thinks that having the admission in the
agreement will help her to make a better claim for money if he
breaches the settlement agreement for any other reason.
All of these are good reasons for him to keep the admission out of the agreement.
I don't have much to add on the question of how you can behave during
the year without putting the separation deal at risk. The stronger
statement you can have about each party leaving the other alone to
live as a single person, the harder it will be for her to justify
snooping. The courts don't want to overturn a settlement agreement,
but if she has the grounds to push the adultery claim it is something
to worry about. Since you can't ask that the agreement allow you meet
in the same house for extended periods, there will be some degree of
risk if you do. Of course if the financial deal that you give her in
the settlement agreement is favorable to her, she'll have less reason
to want to take the trouble to accuse you of breach--unless sheer
vindictiveness might make her change her mind about the deal she
Again, good luck with your situation.