There are many layers to the divorce process, and every state has its own particular rules and laws in place for overseeing the dissolution of these unions. The state of New Jersey allows couples to separate if they want to live separately and independently but do not wish to be divorced. Reasons abound as to why some couples prefer separation to outright divorce—financial and religious matters can often play a role—but when separation is what a couple seeks, New Jersey courts can be accommodating. If you think that you and your spouse may benefit from a separation, watch the videos below to learn more about separation agreements, their requirements, and limits under New Jersey law.
How Do I Get a Legal Separation in New Jersey?
There is no formal proceeding in New Jersey called a “legal separation.” The closest thing to it is an action for what is called a “divorce from bed and board,” which can be filed if either or both spouses don’t want to be divorced but do want to have a court resolve all of the issues that would normally be resolved in a divorce case, such as child custody and parenting time, child support, alimony and equitable distribution. Upon the entry of a Judgment for a divorce from bed and board, the parties will remain legally married but they will be economically divorced, just as though a Judgment of absolute divorce had been entered. This vehicle is often used by a party whose religious beliefs frown on divorce, or who must maintain the right to remain covered by his/her spouse’s health insurance.
What Is the Difference Between Separation Agreements and Marital Settlement Agreements?
From a legal standpoint, there is no real difference. A Marital Settlement Agreement (“MSA”) is simply the name of the document which is used when the parties choose not to separate at the time when they enter into the Agreement. An MSA is subject to the same rules for enforce ability as Separation Agreements. As long as each spouse has his/her own lawyer, an MSA will usually be enforced when the parties divorce unless the MSA provided for alimony and/or child support and in the interim, there has been a substantial “change of circumstances.” There is actually no legal requirement that either party to an MSA have a lawyer—as long as you can show that each party entered into the MSA freely and voluntarily, and that each party had the chance to get legal advice but chose not to do so. However, that’s a risky proposition, because if an unrepresented party later challenges the Agreement, New Jersey courts will look very closely at the circumstances under which the Agreement was entered into, and are more likely to overturn the Agreement. One thing is for certain: When possible, it is much better to enter into a written Agreement on all of the issues related to a divorce, than to go to trial and force a Judge to decide. The ideal situation is when divorcing spouses are able to come to an agreement before they even file for divorce and get the court involved. That’s what called an “uncontested” divorce, and everyone certainly benefits by that.
Which Issues Should Be Addressed in Separation Agreements or MSA’s?
Well-drafted Separation Agreements / Marital Settlement Agreements should address and resolve as many of the following issues as are applicable: alimony, parties’ health care insurance and unreimbursed health care expenses, life insurance or other security for payment of alimony, child support and payment of daycare/education expenses, children’s health care insurance and unreimbursed health care expenses, life insurance or other security for payment of child support, income tax deductions for children, custody/parenting time, division of assets/debts, joint/separate filing of income tax returns and allocation of taxes/refunds, and payment of counsel fees and costs.