In the past two days I have received two different calls, each from a woman who said that she is in an abusive relationship, can’t stand it anymore, but doesn’t want a divorce because it will disrupt the children’s lives, or she can’t make it financially on her own, or she needs the health insurance. Each assumed that, since we now have no-fault divorce in New York that she could get a no fault separation. Each also assumed that she could do it without her husband’s cooperation, since it would be no fault.
Unfortunately for their plans, the revisions two years ago with respect to the grounds for divorce in the New York Domestic Relations Law do not apply to separation. Divorce and separation are different sections of the Domestic Relations Law. The section on separation was not amended and still requires either the consent of both of you or an order of a Court, which you can only obtain by beginning an action for separation, just as you would for a divorce.
It also seems to be a Myth of Divorce (actually of Separation) on Long Island that, now that there is no fault divorce, you can just sign up for one, whether your spouse agrees or not. That is not how it works. Actually, New York divorce law does not provide for actual “no-fault” divorce. What the revisions to the law provided was a new ground for divorce, which is the irretrievable breakdown of the marriage for more than six months. You still have go to Court to obtain a divorce. All issues with respect to children and money have to be resolved before the Court can grant the divorce. In separation, that ground (or legal basis) for a Court to grant a separation is not available.
Neither one of those wives was willing to take the hit and get divorced, so their alternative were limited.