In New Jersey legal separation is not specifically recognized for legally married couples. However, married couples can enter into legally enforceable agreements between each other,
which controls the distribution of marital property, repayment of marital debt, and even parenting the children. These agreements, frequently referred to as "property settlement agreements" or "marital agreements," are usually
prepared in contemplation of divorce (by lawyers).
However,
even if the divorce is never filed, the agreement is still legally binding upon both husband and wife 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 your accountant. Suprisingly, 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 you "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 merry-go-round of the divorce process.
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.
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, although there are less desireable options.
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 choice 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,” 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.
