Legal Separation vs. Divorce in NJ

Legal Separation vs. Divorce in NJ

Ending a relationship can be difficult for anyone. When that relationship is a marriage, however, contemplating its end comes with many additional layers of complexity because of its impact on all areas of your life. Some people want to separate from their spouses but are not sure they are ready to divorce. Others have moral, financial, social, or religious reasons for not wanting to go through with divorce but still have a semblance of finality that their relationship with their spouse is over.

If you are considering a separation from your spouse and are wondering how that might differ from going through with an absolute divorce, you might wonder how these two processes differ and what being separated vs. divorced might mean for you and your family. A divorce lawyer in New Jersey at the Ziegler Law Group can talk to you about your situation and your goals and help you determine how to proceed. Here's some information about both processes to help you understand the differences between separation and divorce in New Jersey and how each works.

What Is Legal Separation?


The first thing to note is that New Jersey law doesn't specifically address legal separation between married couples. Couples who want to pursue a legal separation have two options, including a divorce from bed and board or a separation agreement. Let's take a look at each of these options below.

Divorce From Bed and Board in New Jersey


Under N.J.S.A. § 2A:34-3, the state only recognizes legal separation for partners in a civil union but not for spouses in a marriage. Instead, the statute provides a process called divorce from bed and board for married couples. This is also known as a limited divorce and works similarly to an absolute divorce. To get a divorce from bed and board, both spouses must agree to pursue it.

This type of limited divorce relies on the same cause or causes of an absolute divorce, and it works by separating the couple's finances. However, they will remain legally married and will not be allowed to marry other people. People who get a divorce from board and bed can file a revocation of this status if they reconcile or a motion to convert it into a regular divorce. While this is one option some couples might pursue, many couples who want to separate instead choose to enter into a separation agreement since doing so can be completed outside of the court process.

Separation Agreement


In states that recognize legal separation in their laws, it functions as a way for married spouses to divide their assets, debts, and property and establish child custody, visitation, child support, and alimony if relevant. People who get legally separated in those states do not end their marriages and must still list themselves as married on legal documents and tax returns, although they can file tax returns as married filing separately if they want. Separated spouses also are still legally married and are not allowed to remarry others.

People who are legally separated are still able to access certain marital benefits, including pension payments and health insurance. Some couples choose to separate instead of getting a divorce so that a lower-earning spouse can access Social Security retirement benefits based on the earnings record of the higher-earning spouse when they have been married for less than 10 years. There are other reasons why people choose to separate instead of getting a divorce, which will be explained further below.

Since New Jersey law doesn't provide for legal separation, some couples choose to enter into separation agreements instead of getting a divorce from board and bed. A separation agreement is a legal contract between the spouses through which they agree to various terms about the following issues:

  • How the assets and real property will be divided
  • Who will be responsible for various debts
  • Whether one or both parents will have legal decision-making authority over the children's religious upbringing, medical care, and education
  • Parenting plan for the children that includes when the children will be with each parent, how pickups and dropoffs will be handled, and how holidays, birthdays, and vacations will be handled
  • Whether one spouse will pay the other spouse child support and its amount
  • Whether one spouse will pay the lower-earning spouse alimony, its amount, and how the payments will be structured


To enter into a separation agreement, the spouses must agree to all of the terms. If they do, the agreement can be put in writing, and the spouses can sign it in front of a notary public. It's best to have a divorce lawyer in New Jersey draft a separation agreement to make sure it complies with contract law so that it will be enforceable. If one of the spouses later violates the agreement, they can file it in court and seek enforcement. When spouses enter into a separation agreement, they remain legally married and can't remarry other people.

Divorce


A traditional divorce is also referred to as an absolute divorce. It is a legal process through which the bonds of matrimony are dissolved. When people get divorced, they are no longer married and are free to marry other people. Once a person is divorced, the status can't be reversed. If the couple later reconciles and gets back together, they can choose to remarry, but the fact that they were divorced in the past won't change. Divorced people are considered to be single and do not have the right to spousal benefits, including being able to get health insurance through their spouse, file joint tax returns, and others.

New Jersey law recognizes both no-fault divorce and for-cause divorce. Most couples choose to pursue no-fault divorce instead of alleging fault. This is because pursuing a fault-based divorce will require the petitioner to prove the cause in court. If they can't, they won't be granted a fault-based divorce.

There are two no-fault grounds for divorce in New Jersey, including irreconcilable differences and separation with the spouses living apart for at least 18 months. Out of these two choices, most couples claim irreconcilable differences since they can arise at any time and are subjective. However, couples can't get divorced based on irreconcilable differences unless they have existed for six or more months, which means that couples who have been married for less than six months will have to wait.

Why Would Someone Choose Separation Instead of Divorce?


Some couples view separation as a step to take before getting divorced. They might not be sure that they want to end their marriage permanently but want some time to live separately while they work on their issues. If you want to live separately for a time and try to reconcile with your spouse, entering a separation agreement can be a good way to address various issues so that you can continue working on your marriage. If you do choose to get back together, you can then agree to discard the separation agreement and move forward in your marriage.

Other couples want to end their marriages and don't believe that they can reconcile but still choose to separate instead of getting divorced. They might agree to this for financial, moral, or religious reasons. Couples who are separated are still legally married, and they can access spousal benefits. Some of the benefits of separation vs. divorce include the following:

  • Separation agreements are less expensive, not as time-consuming, and less stressful than a divorce
  • One or both spouses object to divorce because of religious beliefs
  • Separated spouses can still take advantage of tax benefits for married couples and can choose to file returns jointly if they wish
  • A separated spouse can still be eligible for the other spouse's health insurance, life insurance, and other benefits as long as the policy doesn't exclude separated spouses
  • Married couples who have been married for less than 10 years might opt for separation if they are near retirement and the lower-earning spouse wants to claim Social Security retirement benefits based on the higher-earning spouse's earnings record
  • Separation leaves the door open to a possible reconciliation
  • If a couple decides to later divorce, they can file the separation agreement with the court to be a part of the divorce judgment


If separated spouses reconcile, they can simply choose to disregard their former separation agreement. Since New Jersey doesn't have a legal separation status, they won't need to go to court to change their status and can reconcile at any time.

Alternative to Separation Agreement, Divorce from Board and Bed, or Divorce


Couples who don't want to do any of the above-listed options can still pursue child custody, support, or alimony orders from the court by filing a complaint in the New Jersey Superior Court in the county where they live. This can allow them to get court orders for these issues. It is still advisable to get help from a divorce lawyer in New Jersey to file a complaint.

Get Help From the Ziegler Law Group


If your marriage is in trouble and you are trying to decide whether separation or divorce is the right option for you, you should schedule a consultation with a divorce lawyer in New Jersey at the Ziegler Law Group. We have years of experience and can help you review your options and make the decision that is best for you and your family. Call us today to request an appointment at 973-878-4373 or fill out our online contact form.

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