The decision to file for divorce is a big one, and some couples are not ready to take that first step right away. Even those who know it is ultimately where things are headed may want to take it slowly so both have a chance to position themselves financially, prepare their kids, etc.
That brings us to couples who think a separation could be a good first step. However, if you are looking for legal separation laws in New Jersey, you will not find them. New Jersey is one of a handful of states that does not require legal separation before divorce. Nor does it have a formal separation process or the ability to file for a “legal separation” with the Court. You do not need a judge’s approval to separate. You can simply do it. If you end up filing for divorce on the no-fault grounds of irreconcilable differences, you need only show that the marriage has been irretrievably broken for at least six months. Living in separate residences – or even sleeping in separate beds – is not a requirement.
However, if you decide to separate but hold off on a divorce filing, understand that Courts will usually not recognize this. Assets acquired during this time may still be subject to equitable distribution. If you intend for a separation to be ongoing for a time and/or need some boundaries in place for the duration, it’s time to consult with a family law attorney about a separation agreement.
What is the Point of a Separation Agreement?
Because New Jersey does not have a specific legal process for “legal separation,” the only way to end a marriage (aside from death) is a divorce.
A written separation agreement if done correctly, can a binding contract that does not end your marriage and is not an alternative divorce. As such, it does not require court filings, fees or appearances. The purpose is typically to provide the foundation of things like custody and support payments so that if you should choose to move forward with divorce, you can do so with a much clearer understanding of what that means and what it will look like.
A separation agreement will stipulate that the couple has decided to separate, will continue to share ownership of certain assets and responsibility of certain debts. It will indicate who is responsible for which bills, who will be responsible for childcare and the details of the parenting time arrangement. It may also have a date at which the terms of the agreement expire.
Once you both agree to the terms, an attorney draws up the agreement, which is then signed. It does not need to be filed with the court. However, as there is no court order, it is treated just like any other contract.
Although you do not technically need an attorney to draft a separation agreement, you’re taking a risk by entering a contract without an attorney’s review or involvement. Independent legal advice for each of you is recommended so that no one can later say they were unfairly disadvantaged.
Our Monmouth divorce attorneys know that legal separation agreements, in certain circumstances, may be a good alternative for couples who are still considering reconciliation as a possibility.
What About a Divorce from Bed and Board?
There is yet another alternative for couples, somewhere between separation and divorce, called a divorce from bed and board, as outlined in N.J.S.A. 2A:34-3. It is sometimes referred to as a “limited divorce.” Basically, the pair formally puts an end to the financial elements of their marriage. Any property one spouse acquires after that point will be considered their separate property, not subject to equitable distribution if they decide later to fully dissolve the marriage.
The most common reasons a couple may seek divorce from bed and board as opposed to a standard divorce is when divorce is not an option for religious reasons. It is also sometimes preferrable for couples who have been married a long time and don’t want to remain together but have no plans to remarry. (This plan may also allow couples to remain on the same health insurance policy, in certain cases.)
It should be noted that couples are still considered legally married if they enter a written separation agreement or obtain a divorce from bed and board. That means if the couple later decides to patch things up, the separation agreement can be terminated and/or the divorce from bed and board can be revoked. It also means that they cannot remarry without committing bigamy unless they get an absolute divorce.
There are other considerations that should be weighed by anyone considering these options. Our Monmouth divorce lawyers are here to help answer your questions and offer guidance.
Call Rozin|Golinder Law, LLC today at (732) 810-0034 for a free and confidential consultation.