NEW YORK: Rosie O'Donnell and Kelli Carpenter on what is the difference between divorce and "separation"?

rosieNEW YORK: Rosie O’Donnell debuted her radio talk show on Sirius today in New York, called Rosie Radio, and she basically announced that she and Kelli are “separated” as opposed, I guess, to “divorced” and it got me to thinking about the difference between separation and divorce and why she used the term “separated” as opposed to “divorce.” 
In New York, divorce and legal separation are two totally different legal animals, not to be confused with each other. What are the differences between the two? Well, let’s explore each in turn:
In New York, parties can enter into a separation agreement at any time during their marriage. For it to be valid and enforceable by the court, the agreement has to be notarized and acknowledged by a notary public in New York State and filed with the county clerk in the county in which at least one of the parties live.
In the alternative, the parties can have a hearing before a judge who would “adjudicate” them “separated” after a “trial” by a mechanism called a “judgment of separation.”
The terms of the separation agreement are binding on the parties if they divorce, so long as they both substantially comply with the stipulation during the period of separation.
A separation cannot be “transmuted” to a divorce until at least one year has elapsed after the date of acknowledgment.
Parties who enter into a separation agreement do not have to ever obtain a divorce. They can remain separated till they die pretty much. And in fact, they will remain separated until one or the other files a petition for divorce with the court and is, in fact, adjudicated divorce by the Supreme Court in the county in which they live.
Normally, they would agree on how property will be distributed, and on other ancillary issues such as custody, visitation, spousal support and other matters pertaining to assets and children in the separation agreement. It is highly advisable that both parties are represented by their own counsel so that neither can later claim they were coerced into signing, or that they did not understand what they were signing at the time they executed the separation agreement.
A divorce is totally different from a separation. First of all, I should say that one can’t get divorced unless one is married. Big news flash, right? Well, in Rosie and Kelli’s case, there is some question about the validity of their marriage, since after their marriage in San Francisco a few years back, gay marriage was pretty much outlawed by the state of California, pursuant to Prop 8 etc.  So whether their “marriage” is valid is a question, and unless it is valid, it would not be given “full faith and credit” by the New York courts since New York doesn’t even recognize gay marriage to begin with, and certainly cannot recognize a gay marriage that may not be “valid” in the state in which it was supposedly “solemnized.”
Be that as it may, assuming that Rosie and Kelli’s marriage is “legal” they cannot get divorced using separation as a ground until one year has elapsed since they executed a separation agreement in New York. So by saying “Kelli and I are separated” it remains to be determined what exactly it is that Rosie means. Does she mean simply that they have moved into different houses? That does not constitute a “separation” in New York state. A separation must be memorialized in writing in order to be enforceable in New York State.
Once a party has been adjudicated “divorced” that’s pretty much it for that marriage. They can re-marry, certainly, but that would be a different marriage. A judgment of divorce pretty much ends a marriage forever and a new marriage would have to be entered into if the parties reconciled after judgment.
Does one need the “agreement” of one’s spouse to get a divorce in New York state? Not necessarily. Certainly, divorce by separation agreement is our “no fault” divorce. But if one cannot get one’s spouse’s consent to an agreement (and again, you would have to wait a whole year at least before you can transmute a separation agreement to a divorce in New York state) then one would have to figure out what of the six or so grounds one could use to get out of the marriage. For example, one can say one’s spouse treated one cruelly. One can also say that one’s spouse committed adultery, constructively abandoned you, flat out left and deserted you, is imprisoned, and/or…that’s about it…. I feel like I’m missing one…Those are the grounds in New York if you do not have the consent of your spouse and cannot enter into a separation agreement.
If you can’t prove grounds and your spouse challenges the divorce, you are stuck. You remain married.
So, what did Rosie mean when she said “Kelli and I are separated?” Well, she definitely didn’t mean they are divorced. They may never divorce for all we know! Heck, they may not even be married! But if they are, she could simply mean that they are not cohabiting at the moment. It may not be a “legal separation” at all but just an unofficial time out.
The consequences of not being “legally separated” is that Kelli continues to have a stake in anything Rosie acquires until they file a separation agreement, or someone of them files a divorce petition. So, for example, if Rosie’s radio show is successful, Kelli would get a piece of it even if they are living apart, so long as they have not executed a separation agreement. On the other hand, if they have executed a separation agreement, that is properly acknowledged in the manner of a deed as is required in New York State, then anything Rosie acquires by way of assets going forward, would not be a part of “marital assets” that she has to share with Kelli once the “separation” is “transmuted” to a divorce later on.
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