Two routes
A separation agreement. A written contract between spouses covering the same ground a divorce settlement would. It must be in writing, signed, and acknowledged with the formality required to record a deed — the same strict requirement that applies to prenuptial agreements, and the same place where agreements fail. DRL §236(B)(3) requires a written agreement signed by the parties and acknowledged or proved as required for recording a deed.
A judgment of separation. A court proceeding on statutory grounds, less common in practice. DRL §200 now includes cruel and inhuman treatment, abandonment, qualifying failure to support, adultery subject to statutory defenses and limits, imprisonment for at least three consecutive years, and irretrievable breakdown for at least six months. The no-fault ground requires resolution of the relevant economic and child-related issues before judgment.
What it does
- Resolves property, support, custody, and parenting time
- Establishes an enforceable arrangement while you remain married
- Preserves marital status for religious, insurance, immigration, or benefits reasons
- Provides a defined structure during a period of uncertainty
What it does not do
- End the marriage. You cannot remarry.
- Guarantee continued health insurance. Coverage depends on the plan. Legal separation can be a COBRA qualifying event if it causes loss of coverage; it does not automatically end every plan’s spousal coverage. Obtain the plan administrator’s written explanation before relying on continued coverage.
- Stop the financial entanglement automatically. Some obligations continue while you are married.
The route to divorce
Under the current DRL §170(6), living separate and apart under a qualifying separation agreement for at least six months can be a ground for divorce, with substantial performance of its terms and the required filing. Where a couple later decides to divorce, a well-drafted separation agreement can carry into the divorce and make it straightforward.
That is worth knowing at the drafting stage: a separation agreement written carelessly, on the assumption it is temporary, becomes the terms of your divorce.
Why most people end up divorcing instead
Because separation costs roughly what a divorce costs — the same issues, the same negotiation, the same drafting — and delivers less. If the marriage is over, most couples conclude they would rather resolve it once.
Separation earns its place where there is a specific reason to stay married. If there is not one, it is generally worth asking whether it is doing anything a divorce would not do better.
Frequently asked questions
What is the difference between legal separation and divorce?
A separation resolves property, support, and custody but leaves you married and unable to remarry. A divorce ends the marriage.
Do I need a separation agreement to live apart?
No. Living apart requires nothing. An agreement is what makes the financial and custody arrangements enforceable.
Will legal separation keep my spouse on my health insurance?
It depends on the plan. Confirm continued eligibility with the administrator in writing. If separation causes loss of coverage, COBRA or another coverage option may be available, subject to the applicable rules and deadlines.
Can a separation agreement become a divorce?
Yes. Current DRL §170(6) requires at least six months living apart under a qualifying written separation agreement, substantial performance of its terms, and the required filing. Its terms can carry into the divorce.
Is a separation agreement binding?
Yes, where properly executed. It must be in writing, signed, and acknowledged with the required formality — the same strict standard that applies to marital agreements.
Related: No-Fault Divorce · Uncontested Divorce · back to Divorce
Written by Dale Riedel, Esq. · Admitted in New York, Bar No. 5837539 · Last reviewed October 6, 2026