Divorce is one of the most significant events in a lifetime. If you need a divorce, or have been served by your spouse with a divorce complaint, it is important that you seek legal counsel at your earliest convenience. At Richard F. Fried, Counselors at Law we are accustomed to dealing with short deadlines, but don’t put off the inevitable. Allow yourself time to speak with several attorneys before you choose the one that is just right for you. The decisions you make now could make a difference in both the outcome of your case and the lifestyle you will enjoy long after the final divorce decree has entered.
Click on link topics for more information.
- Child Custody
- Child Support
- Equitable Distribution
- Types of Divorce
- Uncontested Divorce
- NEW Alimony Law
WHAT IS LEGAL SEPARATION?
If you and your spouse have separated but are not yet ready to file divorce, you can enter into an agreement to divide property, pay debt and to support and parent your children. Read below for an in depth look at legal separation in New Jersey.
Our office will help prepare the agreement, which is then signed before a Notary Public. Once completed, it is a legally enforceable contract between spouses. The agreement need not be filed in any court until you decide to divorce (if ever).
Legal Separation In Depth
In New Jersey legal separation is not specifically recognized for legally married couples. However, married couples or civil union partners can enter into a legally enforceable agreement between each other, which controls the distribution of marital property, repayment of marital debt, and even the parenting of the children. These agreements, frequently referred to as “property settlement agreements” or “marital agreements,” are usually prepared (by lawyers) in contemplation of divorce.
However, even if the divorce is never filed, the agreement is still legally binding upon both husband and wife or civil union partners in most respects. In other words, even though nothing is filed with any court, one spouse may move out of the marital residence and live separate and apart from the other without legal repercussions (such as being accused of desertion).
But you cannot legally remarry, and you cannot have child support collected by the County Probation Department until such time as you file a legal action in court.
Custody issues can always be reviewed by a court to determine what is in the best interests of the children, regardless of what you agree to. But ordinarily one spouse needs to initiate court review by filing an action.
As far as the tax issues surrounding alimony, you need to consult an accountant. Surprisingly, you may still be eligible to treat spousal support as alimony (for tax purposes) even without filing divorce.
What lawyers generally can’t provide is certainty that your spouse will follow the agreement. Only you and your “ex” can make the choice to live up to your promises. Failing that, you may eventually need to file a complaint against your spouse in a court of law. But hey–you’ll already be living apart. For many people, this is the brass ring on the the divorce “merry-go-round.”
In order to have this “marital agreement” recognized by the family court, the parties have the option of filing a Bed and Board Divorce. The only difference between a Bed and Board Divorce and an absolute divorce is that you cannot remarry. However, either party is entitled to an absolute divorce “as of right” at any time thereafter.
Legal separation is now recognized for gay couples seeking to terminate a civil union. In this instance, the phrase “legal separation” actually means what “bed and board divorce” would mean for heterosexual couples. To gain further incite you may want to read the laws of New Jersey N.J.S.A. 2A: 34-3 (see box at right).
The nicest thing about these alternatives is that a spouse who has a debilitating illness or disease may be able to keep their health insurance. Absolute divorce usually does not allow for this possibility.
Bed and Board divorce is not necessarily recommended for those couples who are “on the fence” concerning their desire to live separately. For better or for worse, the most cost effective approach continues to be the standard divorce. However, as health insurance costs continue to rise, more and more New Jersey families with a sole breadwinner need to seriously consider the Bed and Board Divorce or Legal Separation options.
Our office is prepared to sit down with you to prepare a marital agreement, or a civil union agreement, which will address every issue and potential issue as you contemplate separating from your spouse and/or partner. Legally enforceable agreements can also be prepared for unmarried heterosexual couples who are “living together,” (a/k/a cohabitating) whether they have had children, acquired real estate and/or automobiles, or accumulated debt. Jointly acquired debt and real estate are particularly challenging issues, but with thoughtful analysis and cooperation they can be resolved.
As always, we must emphasize the importance of seeking the assistance of a competent New Jersey attorney skilled in the area of family law before making any decision to divide property or separate. The consequences can be dramatic and, occasionally, irreversible.
Contact us now for a confidential consultation on your divorce.
Legal Separation Statute
N.J.S.A. 2A:34-3. Causes for divorce from bed and board or legal separation from partner in a civil union couple.
a. Divorce from bed and board may be adjudged for the same causes as divorce from the bonds of matrimony whenever both parties petition or join in requesting such relief and they or either of them present sufficient proof of such cause or causes to warrant the entry of a judgment of divorce from the bonds of matrimony, provided further that in the case of a reconciliation thereafter the parties may apply for a revocation or suspension of the judgment, and provided further that the granting of a bed and board divorce shall in no way prejudice either party from thereafter applying to the court for a conversion of said divorce to a divorce from the bonds of matrimony, which application shall be granted as a matter of right.
b. Legal separation from a partner in a civil union couple may be adjudged for the same causes as dissolution of a civil union whenever both parties petition or join in requesting such relief and they or either of them present sufficient proof of such cause or causes to warrant the entry of a judgment of dissolution of a civil union, provided further that in the case of a reconciliation thereafter the parties may apply for a revocation or suspension of the judgment, and provided further that the granting of a legal separation from a partner in a civil union couple shall in no way prejudice either party from thereafter applying to the court for a conversion of said legal separation from a partner in a civil union couple to a dissolution of a civil union, which application shall be granted as a matter of right.