What is a Legal Separation in New Jersey?
In New Jersey, legal separation is an official court process which provides a couple who has married civilly, the basic benefits of divorce, while remaining legally married to each other. In this way, legal separation is similar to divorce in that it provides a definitive answer to the question of whether or not the marriage remains intact, but with the additional benefit that separates spouses have their spouse’s continued support available for each other, and remain entitled to many of their spouse’s benefits.
However, in New Jersey, the term legal separation is somewhat of a misnomer. Many people assume that legal separation is a recognized status of relationship like a civil union or domestic partnership, and thus something they can request the Family Court to issue. In fact, the Family Court of New Jersey does not have any recognized legal separation status. Rather, New Jersey uses the term legal separation in the same way that people use the term "separation" to mean that they are physically separated, either because they have physically moved out, or because they are simply living under the same roof, but functioning separately .
For example, a husband and wife may choose to do one of two things when they decide they no longer want to be married: (1) Move out of the house and subsequently apply for divorce or (2) remain in the house, but live under the same roof, and subsequently apply for divorce. In both examples, the couple is separated from each other. In the first example, they are physically separated from each other because they have moved into a new residence and no longer share the same household. In the second example, they remain physically separated from each other in their own respective rooms of the home, but they still remain attached to the same household. "Legal separation" falls under the previous category, where a married couple has physically separated from each other and has remained separated from each other at the same time (essentially moving out and back in together repeatedly).
Advantages of Legal Separation Compared to Divorce
Couples may choose to be legally separated for any number of reasons – perhaps a religious objection to divorce, the desire to retain the married person’s tax status, or financial reasons. It is also a common step for couples who want to live apart while gathering more information about finances or identifying adequate housing and child care options. Many concerned parents of special needs children also choose to enter into legally separation agreements until their children reach adulthood, at which point the couple has decided they do not need the legal separation any longer.
Some consider a legal separation a "step" toward obtaining a divorce since court approval is not required. The process for legal separation in New Jersey is similar to getting a divorce. The couple submit proposed separation agreements to the court for approval, which are legally binding once the court has signed them. They may outline various points of agreement between the spouses, including but not limited to:
The court can enforce the terms of the agreement like it does for a divorce, and many couples who live by a separate agreement continue to obtain benefits associated with being married as long as the jurisdiction allows.
There are numerous reasons why a legal separation is preferable to divorce for a couple. These include:
When a couple is legally separated, they are still married. The woman retains her married name and dependent status for insurance, and the man keeps his previously filing status. It also keeps the couple from entering into potential domestic violence issues. If the previously married person finds a new partner, it is not considered adultery in the eyes of the law.
Although marital separation and divorce are two ways for couples to part amicably, a legal separation is often a more flexible alternative.
The Process for a Legal Separation in NJ
In New Jersey, the legal process to obtain a legal separation is nearly identical to that of a divorce. At the outset, you will need to have an agreement with your spouse as to the terms of your separation. Factors that should be discussed include custody and parenting time with the children, which party will remain in the marital residence, as well as the marital residence itself (will it be sold or refinanced in one of the party’s names), will anything be done to protect your interest in the value of the assets acquired during the marriage (rehabilitative alimony, lump sum alimony, etc.)? A marital settlement agreement is the actual agreement that you will need to put together with your spouse in order to fully separate.
For the most part, the marital settlement agreement is only enforceable as between the parties themselves and is not binding on a court. There are some exceptions to the general rule, for example, if you agree not to ask for alimony (referred to as the alimony waiver) and then make your request to the court, the court may hold you to the prior agreement. The general purpose of requiring the agreement is that it is assumed that the court will either approve or reject the agreement, but that the agreement itself will not be modified by the court unless the parties agree to the modification.
This is not to say that you cannot have the agreement approved by the court, it can be submitted and the court can approve it. It is, however, typical that the court will ask the parties questions as to their finances so that the court can make certain that there are adequate disclosures. This is important in many ways, including when determining houses that need to be sold and whether the negotiations between the parties were conducted at arms-length (where the parties are looking out for their own interests). In this situation, you do not necessarily need counsel because the terms of the agreement are worked out between the parties and will be incorporated into the Judgment of Divorce.
Legal Separation versus Divorce in NJ
Legal separation is not recognized in New Jersey and therefore, either a Complaint for Divorce or a Complaint for Divorce from Bed and Board (a "limited DBOB") must be filed to legally separate from your spouse. A Complaint for Divorce obtains the same relief as a legal separation. This means that property will be divided up upon divorce, rather than being left as separate property after legal separation. A legal separation does not terminate the marriage. If a party becomes eligible to marry during the period of separation, the party can do so without obtaining a divorce.
A limited DBOB is a hybrid of a legal separation and a divorce. The Court grants a DBOB if the parties are no longer able to live together and provides for support to the dependent spouse if necessary. The DBOB preserves the Marriage and allows creditors of the Dependent Spouse to look to the Marital Estate for recovery of the debt. As such, the parties remain married, the Marriage can be reconciled, property is divided up and they are free to marry someone else. The Court can decide who gets what asset during DBOB discovery.
Many people use this alternative to obtain financial security and/or establish separate residences after years of living together. While financial and other agreements can be reached between the parties regarding these issues, documentation of these agreements should be incorporated into your Consent Order to avoid future litigation.
Financial Aspects of a NJ Legal Separation
Under a legal separation (or limited divorce as NJ used to refer to it), a husband or wife is not prohibited from contacting the other spouse. Since you are still married there is no legal requirement for cohabitation after you file for a legal separation in New Jersey. For this reason, couples who file a legal separation sometimes continue living in the same house while they work out all the issues in their marriage. A legal separation is a time when you and your spouse can live apart and even begin the divorce process while you work through certain issues related to your marriage.
Spousal support may be a determination that occurs with a legal separation. In many cases, a Lepis analysis applies and alimony will be imposed at the time of Divorce. In situations where a legal separation occurs, a pendente lite motion can occur wherein the court may determine the amount of alimony that should be paid by one spouse to the other during the period of separation. The amount of alimony and its duration can be determined by the court under a legal separation in the same way that it would be determined in a divorce proceeding . Keep in mind that the calculation of alimony in a legal separation may differ from a divorce proceeding if the parties later choose to go divorce. This is why it is important to have an experienced NJ divorce attorney review your separation agreement to determine the alimony payment and duration of alimony.
Although property division can occur during a legal separation, a couple may also choose to wait to divide property until a divorce occurs. If property is divided during the separation, however, each spouse keeps sole and exclusive ownership of his or her separate property as well as any property that does not need to be distributed during a divorce proceeding. Also, passive appreciation of property during the period of separation is separate property.
Filing a legal separation does not change filing status or exemptions on your tax return. Even after filing for legal separation or obtaining a legal separation, you still remain married. You will continue to file as "married" or "married filing jointly" for tax purposes.
Where You Live and Custody during Separation
During a legal separation, a husband and wife may decide to live separately and apart under one household or they may reside in different locations. In all circumstances, it is the parties’ standard of living and their needs that dictate their arrangements for living during a legal separation.
As with all aspects of a divorce, if the parties are able to agree on these matters, they are free to do so. Typically, a husband and wife would enter into a property settlement agreement which lays out these and all other terms pertinent to their separation. That agreement is then incorporated into their Final Judgment of Divorce. Thereafter, separation and custody orders can be modified upon application to the court as the parties’ lives change and their needs evolve.
Some of the issues regarding living arrangements and child custody that are discussed during an agreement are: Living arrangements and custody, like all other aspects of a divorce, may be contested. Where there is no agreement, or where one party believes that the terms of a court order or agreement are not being followed, the party can apply to the court to enforce terms regarding living arrangements or custody.
Potential Complications and Solutions
While legal separation can provide a necessary framework for many couples, it is not without potential challenges. For many, one of the most critical and pressing issues involves the actual physical separation itself. For instance, while one spouse may vacate the marital residence, he or she may need access to shared assets and funds. In addition, however necessary the separation, it may simultaneously generate an inherent feeling of loss. For those who once lived together as husband and wife, adjusting to the transition can prove difficult.
Financial concerns may be another sticking point for separating couples. For example, the settling of bills, mortgage payments, credit card debt, and other expenses can all be significant sources of stress within the context of a new separation. Individuals who previously relied on their spouses for financial support may now find it challenging to live independently. In extreme situations, one spouse may threaten the other with the withholding of money or assets, potentially putting both spouses at risk. Common payment-related challenges include child support or alimony obligations, real estate taxes, mortgage payments, car loans, and credit card bills.
Business owners and partners may need to identify solutions before separating, as business entanglements can make complete physical separation difficult. Turning a blind eye to these concerns may jeopardize company revenues, land one or both spouses in legal trouble, or worse, put both spouses in danger.
For those who attempt to do without formal separation agreements, the risk of payment disruption becomes far more pronounced. Uncertainty surrounding child support, alimony, tax returns, medical insurance, and more can create confusion. Even those who previously agreed to payment obligations may find themselves stiffed by the other spouse in terms of support. While the court system in New Jersey may help to clarify many of these important issues, heading to court may not always be the best way to solve problems, particularly when children are involved.
How to Move on from a Separation to Divorce
To make the transition from a legal separation to divorce, one spouse must file a complaint for divorce in the Superior Court of New Jersey. The complaint must be filed in the county in which either spouse has resided for at least one year, or in the county in which they were married. Typically, the defendant spouse only needs to sign one document, which acknowledges their receipt of the complaint and automatic orders that notify the defendant spouse of certain steps they cannot take during the divorce process, such as selling physical property.
The spouse who filed the complaint will always be referred to as the plaintiff and the spouse who was served will be known as the defendant. The complaint will identify grounds for divorce, which could be one year of separation , adultery, etc. If both spouses consent to the divorce, the divorce can be finalized within one year.
However, if either spouse contests the asserted grounds or does not wish to get divorced, it may take longer. In order to go through the contested divorce action process, the plaintiff spouse must file a case information statement that outlines his or her income and any other financial information the court may require.
The divorce is finalized with a judgment of divorce that dissolves the marriage. The terms of the settlement between spouses set forth in a marital settlement agreement are contained in a consent order. The parties do not have to appear in court in order to finalize the divorce if they are in agreement on the terms of their settlement.