Question #35: I read on your website that a legal separation “provide[s] for separate living quarters, if they so desire”. I have read cases where the judge find separation agreement invalid because the spouses are still living together. Your statement “if they so desire” means to me that the husband and wife can still live together even though they are legally separated. What are your grounds for saying this? In the same paragraph you say that in the separation agreement, you can disinherit the spouse. Would this be found invalid as well because the husband and wife are still living together?

Separate living quarters refers to living in the same house, with perhaps one living in the upstairs apartment and one living in the downstairs apartment. That is permitted even after “Separation”. When the court says that “living together” invalidates the separation, the court is most likely using the term to refer to “having sexual relations” after the separation.

By commencing to “live together”, meaning “having sexual relations together”, the parties are exhibiting with their actions that they did not intend to dissolve the marriage and therefore that calls into question the separation and all other terms of the separation agreement which you refer to, including the inheritance provision.

Generally, well-written separation agreements provide that even if the parties do get together again, the terms and conditions agreed to in the separation agreement remain valid until a new agreement is entered into.

If you’d like to discuss the matter in greater detail, please call me at 212-370-1660.

Leonard M. Weiner, Esq./Divorce Solutions