Instead of getting divorced, some couples choose to separate either temporarily or permanently. Separation is not the same as divorce since the separated couple remains legally married. When a couple separates, the spouses live apart from each other. While separation does not terminate a marriage, it affects the legal and financial responsibilities each spouse has. In New Jersey, there are three different types of separation, including a divorce from bed and board, trial separation, and separation under an agreement. Here's what to know about each type of separation and what it involves from an NJ divorce attorney at the Ziegler Law Group, LLC.
Does New Jersey Have Legal Separation?
New Jersey does not have a law that specifically provides for legal separation for married couples. While the state does have legal separation for people in a civil union, it does not for married couples. Instead, under N.J.S.A. 28:34-3, New Jersey provides for something called a divorce from bed and board for those who are married. This is different than legal separation under the laws of other states.
What Is a Divorce From Bed and Board?
A divorce from bed and board is a hybrid between what a legal separation is in other states and a divorce. It is also called a limited divorce through which the finances are separated between the spouses. Any property that one spouse acquires after a divorce from bed and board will be considered his/her separate property and will not be included in the marital estate if the couple later decides to get a total divorce.
Many couples choose to get a divorce from bed and board when they can't get a total divorce because of their religious beliefs. Couples who have been in long-term marriages and do not plan to remarry also sometimes choose this option. Since the spouses will still be legally married, they can remain on a joint health insurance policy.
Before a couple can get a divorce from bed and board, they must both agree to it. This is different than a total divorce. In a total divorce, either spouse can pursue it even if the other spouse disagrees. Following a divorce from bed and board, the spouses will still be legally married and can't marry other people. If they later reconcile, they can ask the court to revoke the divorce from bed and board.
Since a divorce from bed and board does involve a court process and filing fees, many couples instead opt to get separated outside of court under a separation agreement.
Separation Under a Separation Agreement
People can achieve something similar to a legal separation by entering into a separation agreement. This is a more popular option for couples in New Jersey than a divorce from bed and board.
Both spouses must agree to enter a separation agreement and to the terms it includes. People can use a separation agreement to address all aspects, including how their property will be divided, child custody, child support, and alimony. They can negotiate with each other to reach an agreement on all terms. A divorce attorney in Essex County, NJ at the Ziegler Law Group, LLC can help to negotiate the various terms of a separation agreement and draft it in a way that will be enforceable.
If a spouse violates the provisions of a separation agreement, the other spouse can enforce it in court. Since separation agreements are legally binding contracts, either spouse can enforce their contractual rights.
A separation does not end the couple's marriage, and they won't be able to marry other people once the agreement is in place. If they later decide to go through with a divorce, the separation agreement can be used as evidence the property has already been divided and shouldn't be revisited by the court.
Some couples are unsure whether they want to end their marriages and choose to complete a trial separation. This involves the spouses choosing to live separately from each other for a time. During that period, they might seek counseling and try to reconcile. Since this isn't a legal arrangement, nothing changes during a trial separation. The same laws regarding the marital property will still apply. If you and your spouse choose to live separately for a time during a trial separation, any property either of you acquires will be considered marital property and will be subject to division if you later decide to divorce.
If you want to go through a trial separation from your spouse in the hope that you will reconcile, it's still a good idea for both of you to create an agreement that addresses the rules. For example, you might include the following types of things in a trial separation agreement with your spouse:
- Whether to continue sharing a joint checking account and credit cards
- How your spending will be budgeted
- Which one of you will stay in your home
- How the expenses will be shared
- When your children will spend time with each of you
- Whether one spouse should give the other spouse a monthly monetary amount to enable the recipient to make ends meet
- Whether you'll attend marriage counseling and with whom
If you later decide to get divorced, you can use your trial separation agreement as a starting point to create your marriage settlement agreement.
If you reconcile, you and your spouse can move back in together and continue with your marriage.
Do You Have to Get Separated Before Divorce?
New Jersey has various waiting periods for fault-based divorces but does not require legal separation across the board. If you choose to get a divorce based on irreconcilable differences, the waiting period will be six months. The waiting period does not mean that you will be legally separated. However, the waiting period means that you'll need to wait for at least six months to file for divorce based on irreconcilable differences from the time your marital discord began.
Why Do Couples Choose Separation Vs. Divorce?
Couples might choose to separate instead of getting divorced for a variety of reasons. Some of the most common reasons why a couple might choose to separate instead of getting divorced include the following:
- Holding religious beliefs that they can't divorce
- Wanting to keep the family legally together for the children's sake
- Wanting to remain married so that one spouse can continue on the other's health insurance policy
- Having moral qualms about divorce or simply being averse to the idea
- Being unsure whether they want to get divorced and want to try to reconcile while living separately
Talk to a Divorce Attorney in Essex County, NJ at the Ziegler Law Group, LLC
If you trying to decide between getting separated or pursuing a divorce, you should consult an experienced family law attorney at the Ziegler Law Group, LLC. We can explain how the process works in New Jersey and help you determine whether separation or divorce is a better option. Contact us today to schedule a case evaluation by calling 973-878-4373.
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