What Is a Conversion Divorce in New York Law?
A conversion divorce converts a legal separation into a divorce. Legal separation in New York occurs when a couple enters into separation agreement or one of the spouses obtains a decree of separation from a judge.
After a period of legal separation, the couple or spouse can file an action to convert the separation agreement or decree into a decree of divorce.
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Separation Agreements in New York
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A contract to separate. A separation agreement is a contract between spouses to separate. In New York, a valid separation agreement requires the spouses to voluntarily agree to the contract and to separate when they enter into it, or immediately afterward.
Since separation agreements are contracts, New York courts with jurisdiction over contracts enforce them rather than Family Court.
New York Conversion Divorce Based on Separation Agreement
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Spouses must live apart in accordance with a written, properly acknowledged separation agreement for one year or more before they can convert the agreement into a divorce.
The spouse that brings the action for divorce must show that he has lived up to the terms of the separation agreement.
Insignificant violations of the agreement such as occasional late payments will not prevent its conversion into divorce. However, violations of mandatory duties of the agreement like alimony, maintenance and child support payments will prevent a conversion divorce.
A separation agreement will not be converted to divorce if one spouse got the other to sign it through fraud or duress. Nor will it be converted if one of the spouses was legally incapable of entering into a contract due to insanity or incapacity.
Prior to filing for a conversion divorce on the basis of a separation agreement, a spouse must file either the agreement or memorandum of it within the office of the county clerk in either spouse's county of residence.
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Separation Decrees
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A judge can grant a decree of separation. A spouse can file for a separation decree and have a judge declare the couple legally separated.
All of the grounds for divorce are also grounds for separation. These include cruel and inhuman treatment, abandonment, three years consecutive imprisonment of the spouse, adultery and failure to support a spouse.
Separation decrees may also define the obligations of the spouses during the separation.
New York Conversion Divorce Based on Separation Decree
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The court converts the separation decree into a divorce. New York courts will convert a separation decree into a divorce if the spouse filing for it shows that the couple has lived apart according to the terms of the decree for one year or more.
Both Spouses Guilty of Misconduct
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The blame game. When both spouses are guilty of adultery, a conversion divorce may not be granted. However, if both spouses are guilty of cruel and inhuman treatment, a conversion divorce may be granted.
Warning
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Nothing in this article is intended as individualized legal advice. If you have legal questions about conversion divorce in New York, you should consult a New York licensed attorney.
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References
- Photo Credit couple arguing image by Luisafer from Fotolia.com signing a contract image by William Berry from Fotolia.com gavel image by Cora Reed from Fotolia.com The Court of Appeals for the state of New York in Albany image by Ritu Jethani from Fotolia.com caution tape image by david brown from Fotolia.com
