Separation and How It Differs From Divorce

Divorce is final. It’s a big step, and for many couples struggling with their marriage, it may feel like a step too far. For couples who need to take a step back from the marriage but are not yet ready to divorce, there’s a middle-ground option: Separation. Parties who separate can later reconcile, or should the separation prove to be the right choice, they can proceed with a divorce. Separation can take a couple of forms in New Jersey. Read on to learn about how separation works in New Jersey, and if you are considering separation or divorce, call a knowledgeable New Jersey legal separation attorney for advice and representation.

Separation Agreements

To obtain a divorce, one spouse needs to file a complaint in family court and start the legal divorce process. Depending upon the nature of the parties’ relationship, including whether or not they can quickly reach a settlement on all contested issues, divorce may involve months or years of litigation. The parties will need to request and provide evidence, negotiate the division of property, child custody, and other matters, and ultimately get a final order from the court setting the terms of the divorce and dissolving the marriage.

Separation is much easier and much less formal. There’s no need to go to court. Unlike some states, New Jersey has no formal process for “legal separation.” Rather, the parties simply choose to live apart and act as if they are separated.

When people talk about legal separation in New Jersey, they are often referring to separation under a separation agreement. A separation agreement is a legal contract covering many of the same aspects that would be decided upon in divorce. The parties need not live apart to enter into a separation agreement, although they are commonly used when one spouse moves out.

A separation agreement can be used to establish financial rights and responsibilities as well as decide upon custody matters, including:

• Division of property
• Financial support (alimony)
• Child custody
• Child support
• Management of household bills and expenses
• Managing joint assets and debts
• Insurance coverage
• Other divorce-related issues

Once signed and notarized, the separation agreement has the force of any contract. If a party breaches the contract, they can be sued for damages. If the parties cannot agree on financial support or child custody, they can still go to court to get a custody or support order, even without obtaining a full divorce. Separation agreements are often used as a foundation for divorce settlement agreements should the parties later divorce.

Divorce From Bed and Board

New Jersey courts also offer an alternative to a full divorce that carries more legal weight than separation with a separation agreement. A married couple can agree to a “divorce from bed and board,” also referred to as a “limited divorce.” Unlike a full divorce, a divorce from bed and board is only available if both spouses agree to the process.

Obtaining a divorce from bed and board is similar to obtaining a full divorce: The parties go to court, allege the same grounds as they would for a normal divorce (irreconcilable differences), and seek relief regarding child custody, property division, and other divorce-attendant matters. The court will issue an order granting the relief sought, but the parties will remain legally married.

Divorce from bed and board is an attractive option for couples who are either unsure about full divorce or who wish to formally separate but maintain some of the benefits of marriage. For example, parties who obtain a divorce from bed and board may still be covered under each other’s health insurance plans. Any property acquired after a divorce from bed and board will be considered separate property for any future full divorce.

The Legal Effect

The principal difference between separation and divorce is the different legal effect each carries. Divorce results in a final dissolution of the marriage. After a divorce is concluded, the parties are no longer married and no longer profit from any of the legal benefits of marriage–insurance coverage, inheritance, taxes, etc. When you are separated or when you obtain a divorce from bed and board, however, the marriage remains active.

With a separation agreement, as discussed above, you can dictate certain financial and familial matters. You and your spouse will, however, remain married. You can still benefit from any legal or contractual rights attendant to marriage, such as remaining on your spouse’s insurance plan or making medical decisions should they fall ill. You will not be able to marry someone else until you go through a proper divorce.

The parties also remain married after a divorce from bed and board. In order to remarry, the parties would have to go through a final divorce. Divorce from bed and board can, however, result in changes to marital rights such as inheritance. A party can disinherit their spouse after divorce from bed and board, and the spouse is not entitled to automatically inherit their spouse’s estate.

Reconciliation

Because divorce results in a final dissolution of the marriage, reconciling after divorce is much more involved than after separation. If the parties wish to be married, they will have to remarry.

Reconciling after separation, on the other hand, can be as simple as agreeing to reconcile. If there’s a separation agreement in place, the parties can agree to terminate the agreement. Reconciling after a divorce from bed and board is also possible. The parties can have the court’s judgment revoked and resume the marriage.

The parties can even draft a new contract setting certain terms of reconciliation, commonly called a “reconciliation agreement” or “postnuptial agreement.” A reconciliation agreement might, for example, dictate certain terms for future alimony or property division should the parties ultimately divorce. An experienced divorce attorney can help you draft your separation or reconciliation agreement to ensure the terms are fair and enforceable.

Get Dedicated Legal Help With Your New Jersey Separation or Divorce

If you need seasoned legal help with child custody, separation, divorce, child support, alimony, or other family law matters in New Jersey, contact the Union offices of family law attorney John B. D’Alessandro at 908-964-0102.