Legal Separation in New Jersey

Here in New Jersey, divorce can be a frightening undertaking. No matter how persistent and arduous the marital issues motivating the choice may have been, there is still fear. If you’re thinking about divorce, it’s quite normal to feel yourself in a state of crisis. With all the arising uncertainty, it’s natural to crave stability.

“Can I get legally separated in NJ?” Clients often ask me that question, and the answer is no—this is why there’s no filing for legal separation in NJ. However, executing a separation agreement—even though it’s not a legal separation agreement per se—can put some protection and stability in place for you. Some couples who are experiencing difficulties but are not yet ready to move forward with divorce may find some relief by entering into a separation agreement.

One of the primary concerns facing couples wishing to separate is how their rights might be affected if they leave the marital home.

Another concern is how their parenting rights could be later impacted if they adopt a temporary arrangement out of necessity that is vastly different from the custody arrangement they ultimately want.

“Should I leave my house when I am separating from my wife?” is a common question. The answer is different for every situation.

The courts rely upon the status quo. That means this: whatever couples have established over time, through their behaviors, is given significant weight by the court.

And the courts are reluctant to interfere with or change the “norm” without good cause. It is of no import that the status quo was established unconsciously or erroneously. That is why it is critically important that couples clearly and mindfully—and in writing!—make important decisions before entering a new arrangement.

You do not need an attorney to write a separation agreement; it can be done here in NJ through mediation. Couples work out an agreement that keeps them from relinquishing their rights while still allowing them to work through marital issues.

A separation agreement, interim agreement, or postnuptial agreement can serve as a tool to establish certain terms upon which both parties can depend while they figure out their next steps.

A separation agreement can immediately address issues causing stress and requiring immediate attention. Such issues may include custody and visitation of the children, household finances, budgets for living separately, and allocation of resources for a second residence.

Reaching an agreement on these matters can give parties the confidence that some of the day-to-day issues are being managed, thus making room for them to address longer-term and more nuanced subjects from a more centered position.

I often tell clients there is no race to divorce—it is an option that will always be there. However, there is an urgency to moving one’s family and one’s self out of a crisis. Developing a separation agreement can be a helpful instrument to foster security.

Options for executing a separation agreement depend upon the state in which you live. Whereas New York recognizes a legal separation agreement, there is no such thing as a legal separation agreement in New Jersey. There is also no filing for legal separation with the court — these agreements are executed separately from the court system.

A Legal Separation Agreement Doesn’t Exist in New Jersey — so What Now?

New Jersey does not recognize “separation” as a legal status. New Jersey recognizes parties as either being married or divorced. Therefore, in New Jersey, a legal separation agreement doesn’t exist as such—there is no filing for a legal separation agreement. That does not mean that couples have no comparable options. Rather than entering into a legal separation agreement, NJ couples can instead enter an agreement referred to as a contractual separation agreement, interim agreement, pendente lite agreement, or postnuptial agreement. Nothing created in mediation and executed by the parties is filed with the court unless and until a Property Settlement Agreement or Marital Settlement Agreement is executed.

In mediation, clients work through all aspects of an agreement of this kind, just as they do when developing a final agreement. Whatever work is done in preparing an interim agreement can serve as the foundation for the larger, more inclusive divorce agreement, which, in New Jersey is called a Property Settlement Agreement or Marital Settlement Agreement.

Such a contract allows individuals to protect themselves should the divorce move forward. You’re not merely entering a legal separation agreement (or comparable agreement)—you’re creating a contract that both parties agree to adhere to. You are not optionless simply because New Jersey does not provide a legal framework for separation and does not recognize a legal separation agreement the same way New York does. You can create and rely upon a contract to ensure that you have the stability to work through mediation. It helps couples protect what is working and address what isn’t.

If you’re considering divorce and you’re not sure what to do next, click here to contact us today. Divorcing couples have options. Understanding those options can help individuals move out of crisis and into possibility. We are committed to offering support and are here if you need us

Legal Separation In New Jersey

Legal separation in NJ — it’s a term that we hear often, but we always have to impart the bad news to our New Jersey clients: legal separation in NJ doesn’t exist.

While New York has an established institution known as legal separation, New Jersey does not.

That does not mean you’re optionless or powerless!  You still have choices if you’re not ready for an absolute divorce.  New Jersey has an answer to legal separation:

It’s called a Divorce from Bed and Board.

Bed and Board Divorce

In NJ, we have this incredible, unique option that doesn’t exist in NY—the bed and board divorce.  

We’ve actually written an entire article on this phenomenon—you can read more about bed and board divorce and how it mimics legal separation in NJ here.

However, just because a divorce from bed and board is similar to a legal separation doesn’t mean it’s the same.  In certain ways, a divorce from bed and board does a lot of the same things that a legal separation does, but it’s still technically a divorce.

The difference between a divorce from bed and board and a “regular” divorce is that parties are not able to remarry until they have obtained an absolute divorce.

To terminate a divorce from bed and board in favor of an absolute divorce, either party can file a document with the court, converting the divorce from bed and board to an absolute divorce.

In a divorce from bed and board, ostensibly all the same papers are filed as for an absolute divorce, however, the relief requested in the documents is for a bed and board divorce. 

However, in these documents, as well as in the marital settlement agreement or property settlement agreement, there is one crucial difference: the documents all state that this is a divorce from bed and board, and not an absolute divorce.

Why Is This Important? What Is the Significance of The Distinction?

Well, someone very important cares quite a bit about this distinction: Health insurance companies