What is a Legal Separation in New Jersey?
Legal separation, as the term is used colloquially, generally refers to a period of time where you live apart from your spouse without proceeding with a termination of the marriage relationship (divorce). The actual legal term in New Jersey for what most people refer to as legal separation is "divorce from bed and board." Essentially, this refers to a period where one or both spouse claim an interest in pursuing a divorce but are not yet ready to file. We often see legal separation occur after people attend divorce mediation and ultimately decide it would be best to continue living in the marital home while only one spouse remains in the property while they work to divide their assets and negotiate their terms of settlement. A legal separation agreement or order can be constructed at that time to provide for those provisions and is valid and enforceable as any other contract or court order .
In order to qualify for a legal separation in New Jersey, you are required to prove a ground for divorce. In other words, you need to tell the court why you are filing for divorce in a legal filing known as a complaint. The ground for divorce must fall under one of the 16 categories of divorce grounds set forth in NJSA 2A:34-2:
Behavior
Desertion
Separation
Extreme cruelty
Voluntary Addiction
Institutionalization
Adultery
Conviction of an Indictable Offense
Other grounds
Just because you have been granted an order of legal separation does not mean that you cannot file for divorce. You can choose to dismiss the legal separation and file for a full blown divorce at any time. Just keep in mind that any degree you earned during the legal separation may not be classified as separate property if you file for divorce.
Reasons to Pursue a Legal Separation in New Jersey
Divorce is not the only option when couples choose to go their separate ways. Legal separation can provide them with the best of both worlds when there are issues that may need to be resolved before a divorce can move forward or even for those couples who do not want to go ahead with a full divorce. In New Jersey, the concept is very similar to annulment. Essentially, it allows couples to live apart and separate as though they are divorced but remain married.
There are some situations in which separation may be a better option for a couple rather than divorce. This is particularly true in cases involving military personnel. For example, if a spouse is deployed out of the country, a legal separation can make things easier since the couple will retain certain rights under health, insurance, and retirement plans. However, the military spouse cannot make any changes during the time the couple is separated without the other spouse’s consent.
When children are involved, sometimes couples make the choice to legally separate rather than divorce only because it gives them more time to make adjustments that allow the transition to a divorce to be easier on the children. Also, with legal separation, custody arrangements could simply continue indefinitely, which may keep from having arguments in the future about changing "official" custody agreements.
Sometimes individuals feel torn about a divorce and need time for personal reflection. Legal separation gives individuals time to sort out their feelings and determine if a divorce really is the best option. If, after some time, one individual does not want to proceed with a divorce, the other can continue on with the separation until he or she is ready or can file for divorce.
A couple separating usually involves one of them moving out of the house. Sometimes, however, a couple will separate temporarily, retaining the same home. The reasons for this can vary but generally involve finances, where one spouse may want to continue working toward paying off debts, house expenses, etc.
How to Become Legally Separated in NJ
If you and your spouse have decided to legally separate, or if you are considering it, you should take certain steps to ensure that your legal interests are protected. When it comes to filing for legal separation in New Jersey, there are a number of forms and documents that you will typically need: It is important to understand that these forms can be quite complicated, which is why you should enlist the help of an experienced NJ Divorce Attorney who can help you with the entire legal process from start to finish. The legal separation process begins when one spouse files a Complaint Against Defendant for Divorce with the New Jersey Superior Court in the county where one or both of the spouses reside. A copy of the divorce complaint must be handed over to the other spouse (the "defendant"), as well as another document called the Case Information Statement, a proposed discovery schedule, and the required filing fee. It is also a good idea to include a Notice of Automatic Restraining Order with the documentation; this puts a safeguard in place to ensure that no assets are removed from the marital home during the divorce process. Once the complaint has been filed, the defendant must file a response within 35 days. This response must include an answer to the plaintiff’s statements and a counterclaim for a divorce. In some cases, the defendant may make a request for a limited divorce or separation, in which case the parties must comply with any conditions set forth in the request. Next, the parties will typically be scheduled for a Case Management Conference, during which the court will usually schedule a settlement conference. Once the settlement conference has concluded, the parties will be ordered by the court to exchange documents and the soonest possible time frame. If the parties cannot reach a settlement divorce agreement through the assistance of mediators or other experts, the case will go to trial. The case will either be heard by the judge with a non-jury trial, or by a jury who has been selected for this specific purpose. When it comes to obtaining a legal separation in NJ, you can save yourself a whole mess of frustration and hours spent on complicated paperwork by enlisting a trusted NJ Legal Separation Lawyer to assist you.
Legal Separation versus Divorce: The Differences in New Jersey
When contemplating a divorce, many couples in New Jersey are under the misconception that legal separation is a real and separated state of living. The truth is that there is no formal legal separation in NJ in the same way that you may find in other states. But simply because NJ does not legally recognize this react does not mean that it does not happen. In fact, many people work to establish a practical separation while they await the end of a marriage, living apart, but also with little paperwork or legal status to cover them.
In the absence of legal separation in NJ the divorce process is the normal path to follow. It is important to understand when determining the right course of action for you divorce if you do opt to move forward. In this piece we examine the major differences between legal separation and divorce in the state of NJ.
For many, the most notable difference between a divorce and a separation is the idea of divorce as a final resolution to marriage, one that offers closure and finality. A divorce document essentially dissolves your marriage, and the legal or financial obligations that are tied to it. While this may sound dramatic, whether a divorce is necessary is among the most important determinations you can make.
When a couple decides to live apart for a period of time, a legal separation can be made formal or informal. On an informal level, this separation essentially looks and behaves like a divorce, including living apart, sharing your respective property and assets, etc. In a legal separation, on the other hand, you simply follow the divorce process without requesting a dissolution of your marriage at the conclusion. The court will continue to hold jurisdiction as it did during your marriage, and will handle custody, visitation, alimony, etc. Because your marriage has not been dissolved, you are not free to remarry.
The most common reasons for opting for a legal separation before divorce in NJ are as follows:
On the surface, legal separation and divorce may seem to be substantially similar processes, or at least to end in very similar places. Nevertheless, it is important to note that divorce, as the exact dissolution of a marriage, provides for finality and closure. When you are formally divorced, you are free to remarry, as there is no legal impediment to doing so. A legal separation, however, does not terminate your marriage. For couples seeking clarity, healing and transition, whether separation or divorce is the answer must be determined on a case by case basis.
Legal Separation Agreements: Typical Provisions
Legal separation agreements are similar to divorce settlements in that they address many of the issues relevant to divorce. Not all couples who choose to legally separate will ultimately get divorced, but if you and your spouse do later divorce, your legal separation agreement will be used as the basis for your ultimate divorce settlement.
In New Jersey, property division is almost always included in legal separation agreements. However, the specifics of their shared assets and debts will depend on the couple’s particular financial situation . Because the state evenly divides assets and debts, this division is commonly set up through equitable distribution.
Child custody also typically appears in legal separation agreements. A legal separation order is also needed to obtain child support, so this is simply a matter of course with respect to most legal separation agreements. Alimony is not always included in legal separation agreements. Unlike the other issues, alimony is not necessary to be granted a legal separation, so while a couple may have reached an agreement about alimony, it does not necessarily mean that their legal separation agreement will include one.
How Legal Separation Affects Children
When conducting a legal separation in New Jersey, it is important to consider how the process affects children. As you might expect, children are often the top priority during legal separation. While there has been a surge of people opting for legal separation in New Jersey over divorce, the majority of the process regarding children remains the same as in a divorce scenario.
In terms of child custody and visitation, parents will still have to work together to decide who their children will live with. If it is decided that both parents will share joint custody of two separate households, an agreement can be made on how to split time between the two. If one parent is going to receive sole custody, then the other parent will likely receive visitation but not overnight visits with their child.
New Jersey law requires parents to provide financial support, even after a legal separation. This means that a judge will be required by law to issue a child support order between the parents. There is no way around this portion of the agreement even during a legal separation. Payments are calculated based on the New Jersey Child Support Guidelines, which are described in more full detail later in this article.
Specific to legal separation, parents may decide that they do not want to undergo a formal divorce. In this case, the court may officially grant a legal separation during the process of legal separation. This does not automatically mean that the spouses will reconcile and does not erase any alimony obligations.
Consulting for Legal Separation
While not legally required, it’s a good idea to seek legal advice before filing for separation in New Jersey. If you are already separated from your spouse, you should still consider consulting with a legal professional. Under New Jersey law, judges do not divide marital assets (during the divorce process) for any period prior to filing for divorce. But there is no timeframe for which separates assets used during the separation must be divided.
Even if you are not yet separated with your spouse, divorce laws in New Jersey are complicated. Seeking the help of a divorce attorney is the most effective way to secure a proper solution. An attorney will help you ensure that you and your interests are protected during the process.
Legal Separation FAQs in NJ
What is legal separation in NJ?
Legal separation refers to the choice made by a married couple to live apart and file for divorce at a later date, or in certain unique situations, a permanent separation to protect assets from being coming "marital" property. It is important to remember that New Jersey does not legally recognize "legal separation" as a legal status or status.
How long do you have to be separated to get a divorce in NJ?
You do not have to be separated for a certain period of time to get divorced in NJ. However, the law does require that the parties to remain separated for a minimum of 18 months before filing for a no fault divorce in New Jersey if their decision to separate was mutual and not the result of marital misconduct. If the divorce is filed prior to the 18 months, the plaintiff will need to show agreement on the fact and the duration of the separation. The 18 month waiting period to file for divorce is waived if the separation was as result of physical domestic violence or if you can prove abandonment (infidelity) by one spouse.
Are you financially responsible for your spouse if you are legally separated?
No, your spouse is financially responsible for his or her own debt. However, if you are legally responsible for certain debts before a separation , you may still be responsible for those debts after a separation.
How do I obtain social security benefits if I am legally separated?
Generally, you must be married to receive social security benefits. However, certain conditions apply that require you to be legally separated in order to access social security benefits. A person must be legally separated to continue receiving social security benefits if they are:
Can a person who is legally separated collect on disability?
While legal separation does not happen in NJ, it does not eliminate one’s ability to collect on disability. If you are unable to work due to a disability, you may qualify for disability benefits regardless of your marital status.
Will I be required to cohabit with my spouse if we agree to legal separation?
No, however, physical cohabitation will affect the negotiation of alimony, as the parties will be expected to work out a living arrangement.
Does legal separation have an effect on property division in NJ?
It may. In NJ, property division is based on equitable distribution. Equitable distribution includes:
Can my spouse get alimony if we are separated?
Yes. Alimony is separate from equitable distribution and can be granted while you are legally separated as long as you were married. Alimony has no bearing on whether or not you are legally separated.
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