The Separation Agreement As a Basis For a Divorce (DRL 170.6)

Pursuant to Domestic Relations Law Section 170.6, a separation agreement may be used as the basis for a divorce on or after its 1 year anniversary. The 1 year time period runs from the proper execution of both husband's and wife's signatures before a notary public, not from the filing date. An agreement cannot take into account, for purposes of calculating its maturity, any time spent already separated prior to the agreement.

The agreement must be filed in the County of residence of either Plaintiff or Defendant. Filing of the agreement is normally done prior to the commencement of the action, but may be done simultaneously; it may also be done simultaneously with submission for placement on the Uncontested Calendar (filing of Note of Issue). In any case, the circumstances under which the agreement was filed must be accurately stated in the pleadings. If a separation agreement is used as the basis for a divorce, the pleadings and other court papers should contain the following language:

"Plaintiff and Defendant have lived separate and apart pursuant to a written agreement of separation. The agreement has been acknowledged by both parties in the manner required for a deed to be recorded. The agreement has been filed with the County Clerk of ________ County on (prior date) or has been filed simultaneously with the summons and complaint, or has been filed simultaneously with the note of issue. Plaintiff has substantially performed according to the terms of the agreement."

A single copy of the agreement must be attached to the pleadings when submitted to for placement on the uncontested calendar.