New York Domestic Relations Law §170(6) and §170(7): Living Separate and Apart Under a Separation Agreement Compared to No-Fault Divorce

New York Domestic Relations Law (DRL) §170 establishes the legal grounds upon which a court may grant a judgment of divorce. Among these grounds is DRL §170(6), which allows spouses to obtain a divorce after living separate and apart pursuant to a written separation agreement. In contrast, DRL §170(7), enacted in 2010, authorizes a no-fault divorce based on the irretrievable breakdown of the marriage. While both provisions provide lawful means to dissolve a marriage, DRL §170(7) has become the preferred ground because it streamlines the divorce process and avoids many of the procedural requirements associated with separation-based divorces.

DRL §170(6) permits a spouse to obtain a divorce when the parties have lived separate and apart for at least one year pursuant to a written separation agreement. To satisfy the statute, the agreement must be signed by both spouses, acknowledged in the same manner as a deed, and filed with the county clerk in the county where either spouse resides. The parties must also substantially perform the terms of the agreement throughout the one-year separation period. Separation agreements typically address important issues such as property division, spousal maintenance, child custody, parenting time, child support, and responsibility for marital debts. Once the statutory requirements have been met, either spouse may commence an action for divorce under DRL §170(6).

Historically, DRL §170(6) provided couples with a practical alternative to fault-based divorce. Before New York adopted no-fault divorce, spouses who wished to avoid proving adultery, abandonment, cruel and inhuman treatment, or other fault grounds frequently entered into separation agreements to establish the legal basis for a future divorce. Although this approach reduced the need to litigate fault, it still required careful compliance with statutory formalities, including proper execution, filing of the agreement, and living separately for a full year before a divorce action could be commenced. Failure to comply with these requirements could delay or jeopardize the divorce.

Today, most spouses instead file under DRL §170(7), New York's no-fault divorce statute. Under this provision, a spouse must simply state under oath that the marriage has broken down irretrievably for at least six months. Unlike DRL §170(6), there is no requirement to negotiate, execute, acknowledge, or file a separation agreement, nor is there a requirement that the parties live apart for one year before filing for divorce. Once all ancillary matters, including equitable distribution, maintenance, child custody, parenting time, and child support, have been resolved by agreement or court order, the court may grant the divorce.

Filing under DRL §170(7) offers several practical advantages. Because the statute eliminates the need for a prior separation agreement and a mandatory waiting period, the divorce process is generally faster, more efficient, and less expensive. It also reduces unnecessary procedural hurdles and allows the parties to focus on resolving financial and parenting issues rather than satisfying technical statutory requirements. In many cases, the no-fault approach promotes cooperation, encourages settlement, and minimizes conflict, making it particularly beneficial when children are involved or when the parties seek an amicable resolution.

In conclusion, DRL §170(6) remains an important statutory ground for divorce when spouses have lived separate and apart for at least one year pursuant to a valid written separation agreement. However, because DRL §170(7) provides a simpler and more direct path to dissolving an irretrievably broken marriage without requiring a prior separation agreement or extended waiting period, it has become the ground most commonly used in New York. For most couples seeking an efficient and less adversarial divorce, filing under DRL §170(7) is generally the most practical and effective choice.