Some people in New Jersey want to separate from their spouses without dissolving their marriages. They might prefer legal separation over divorce for several different reasons, including being unsure whether they truly want a permanent end to their relationships, wanting to retain certain benefits such as health insurance, or having religious reasons for not wanting to divorce. Here is some information about legal separation in New Jersey from the attorneys at the Ziegler Law Group LLC.
What is Legal Separation?
Many states have included legal separation in their family law statutes as a status between marriage and divorce. In these states, people who are legally separated divide their assets, debts, and property, establish child custody and visitation agreements, and have child support and/or alimony orders issued by the court. They also live apart in separate households. While people who are legally separated under the laws of those states might appear to be divorced in all outward aspects, their marriages continue to exist. This means that the individual spouses are not free to get married as long as they remain married but legally separated.
While this status is legally recognized in many states, New Jersey does not have a law that controls legal separation. Instead, couples in New Jersey who want to separate have a couple of different ways to approximate this status without ending their marriages.
Difference Between Separation and Divorce
A divorce legally dissolves the marriage. People who get divorced are no longer legally married and are free to remarry other people. Divorced people can't file joint tax returns and can no longer be covered by their spouse's employer-provided health insurance and other benefits. By contrast, people who are separated remain married in the eyes of the law. This means that they can't marry other people but can remain covered by their spouse's health insurance if they agree.
Legal Separation in New Jersey
In New Jersey, the law only provides for legal separation for couples who have civil unions. A civil union is a legal status that functions similarly to marriage but is different. By contrast, no law in the state provides for legal separation between married people. However, this doesn't prevent married couples from entering into agreements or using a different option to achieve legal separation.
One way couples can separate without getting an absolute divorce is outlined in N.J.S.A. 2A:34-3 by getting a divorce from bed and board. This statute distinguishes between a divorce from bed and board and a divorce from the bonds of matrimony; and provides that couples who want to get a divorce from bed and board can allege the same causes as those who seek an absolute divorce. However, both spouses must agree to pursue a divorce from bed and board. Through this procedure, the same issues about property division, custody, child support, and spousal support can be addressed. However, when the case is finished, the couple will remain married.
While this process is available, most couples who want to separate instead opt to create a separation agreement to affect a similar result. By negotiating a separation agreement and filing it with the court, couples can effectively achieve a legal separation without having to go through the divorce from bed and board process.
Is a Separation Agreement a Legal Separation?
New Jersey doesn't have a legal provision that allows for married couples to legally separate, unlike other states. However, couples who don't want to divorce but do want to separate can choose to create a separation agreement. This agreement is a contract between the spouses that outlines the terms of their separation through the contractual provisions. This type of document is recognized as a legal contract and is binding. While it is not classified as a legal separation in New Jersey, it functions in similar ways.
Couples typically include terms about the following issues in their separation agreements:
- How they will divide their property, assets, and debts
- Whether one spouse will pay spousal support to the other and how much it will be
- How legal and physical child custody will be handled by the parents
- Visitation of the children with each parent
- The payment of child support by one spouse to the other
Is a Divorce Lawyer in New Jersey Necessary for a Separation Agreement?
Separation agreements are legal contracts that must meet specific criteria to be valid. This fact makes it important to be represented by a knowledgeable divorce lawyer in New Jersey for help with negotiating the terms, drafting the contract, and ensuring that your best interests and rights are protected. When you have guidance from an experienced attorney, it also reduces the chance that your separation agreement will contain errors and that it will be filed properly.
Understanding Separation Agreements in New Jersey
Separation agreements are legally binding contracts between spouses. Once a separation agreement is signed and notarized, the spouses will be bound by it and must follow its provisions. The reason for entering into a separation agreement is to address and resolve all of the issues that would have been addressed if the couple had chosen to divorce.
By entering into a separation agreement, couples can protect their rights without having to litigate in the courts. This process can save significant amounts of time that would otherwise be spent during a long court process and the court and attorney's fees that would be required.
If your spouse violates your separation agreement, you can seek legal redress in court to enforce it. If that happens, you can also ask the court for an order that your spouse pays your legal costs and fees. A spouse who violates a separation agreement might also be held in contempt, which could result in civil penalties.
You can also include a provision in your separation agreement for it to be incorporated in your final judgment if you later decided to get divorced. This can make the divorce process much faster since the major issues will have already been resolved.
There is no requirement for you and your spouse to live separately to have a separation agreement. In some cases, couples will remain living in the same home for economic reasons even when they have a separation agreement.
Trial Separations vs. Separation Agreements
Some people choose to go through a trial separation before they decide whether to pursue a divorce or enter into a separation agreement. Trial separations are typically informal agreements for spouses to live separately. Some couples choose to informally separate while they try to reconcile or assess their wishes about their marriages and want some distance to reduce some of the conflicts between them.
Trial separations are voluntary, and the couples who choose them will decide the rules that apply. Unlike separation agreements, the terms of trial separations are typically not written as legally binding contracts. Couples who choose trial separations will have to decide who will be responsible for paying debts and bills, where the children will live, and any support one spouse might need from the other. However, since trial separations are typically not written as legally binding contracts, a spouse will normally not be able to pursue enforcement in court if the other spouse violates their informal agreement. However, courts will still address specific aspects, including child custody and visitation.
Reasons People Choose Separation Agreements Instead of Divorce
There are numerous reasons why some people choose to enter into separation agreements instead of getting divorced. In many cases, people do so for economic reasons, including the ability to file joint tax returns or for one spouse to remain on the other spouse's health insurance. Couples who are nearing retirement age might choose to enter into separation agreements so that one spouse can receive Social Security retirement benefits based on the higher-earning spouse's earning record, for which they must remain married for 10 years.
Some couples choose to enter into separation agreements because of their religious beliefs. Others might worry about the stigma of getting divorced even though it is more socially accepted today. Finally, some parents opt for separation agreements to make it easier on their children while they continue to live together. However, couples who are considering legal separation for this reason might want to consider whether the toxicity of their interactions with each other might be more harmful to the children than if they instead opt for divorce.
Consult a Divorce Lawyer in New Jersey
If you are considering your options and believe your marriage is over, you should speak to an experienced divorce lawyer in New Jersey at the Ziegler Law Group LLC. We can discuss your situation and help you determine whether a divorce or legal separation might be a better option for you. To learn more about your case and legal options, contact the attorneys at the Ziegler Law Group LLC today by calling us at 973-878-4373.
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