Question #43: My wife and I have recently separated and have been so for about three months. Our intention is to finally divorce. We are both aware that we must be separated for at least one year in order to be granted a divorce in New York State (we both live in Manhattan) and we realize we should probably draft up a separation agreement and have that notarized. Now here are a few questions: Although we’ve already been living separated for three full months, does the separation officially begin on the date the agreement is signed and notarized? And since we are aware that a LEGAL separation is not the same thing as being separated (my understanding is that a legal separation is similar to a legal divorce — you can correct me on this — and, thus, demands the same prerequisites to be eligible for a divorce in NY state), how necessary is a separation agreement? How else can we prove to NY state that we’ve been separated for one full year? Also, how necessary is it to hire attorneys, etc., to review the agreement as well as hiring a mediator to help us hammer it out? One more question… I find plenty of information on DIVORCE mediators but not on simple marriage separation mediators (someone to help us work out the basics on the separation agreement), I assume that the divorce mediators handle/are the same thing. On average, how much does a mediator cost? What organizations/listings/websites can lead me to the more reliable, experienced and recommended of the bunch. And, since we’re on a very tight budget, are there any not-for-profit legal aid/mediation groups that are affordable and can help us out in a similar manner? Thank you for your time in answering my email.

You, like many others in New York , are misinformed regarding the one year requirement.

If you and your spouse are in agreement and both wish to divorce, it is possible to choose one of the acceptable grounds other than the Separation Agreement, and to file for the divorce immediately without waiting the one year period.

A legal separation requires that you enter into a Separation Agreement or are separated by order of the court. Simply living separately or moving out of the same apartment is not considered a separation under the law, and you are for all purposes still legally married in every respect.

Divorce mediators also mediate separations, which is the first step in the divorce process.

It is essential that you engage an attorney- mediator experienced in matrimonial matters and that all of the documents be prepared properly so that you can get on with your lives without worrying that your separation or divorce will come back to haunt you later on. This is no time to save money on attorneys’ fees. It is penny wise and pound foolish. You get what you pay for and any free assistance is usually worth about what you pay for it.

If you are living in the New York City metropolitan area, I strongly suggest that you call me at 212-370-1660 to arrange for an appointment.

Leonard M.Weiner, Esq./Divorce Solutions