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In New Jersey, individuals who consider dissolving their marriages often ask about whether they can enter into a legal separation. We see this frequently when people aren’t sure about divorcing but would like to separate from their spouse without risking the loss of their rights in property, assets or custody.
Legal separation in New Jersey doesn’t really exist. If you want to separate from your spouse, you can do so, and you don’t need an agreement to do that; but if you have children and you want to leave the marital home, you cannot take the children with you unless you have your spouse’s consent or permission from the court. In other words, you can leave at any time, but the children cannot leave with you unless your spouse consents or the court gives you permission.
When divorcing parties ask about legal separation, we tell them that in order to enter into a separation that protects your rights in assets, property, and children, then we as your lawyers have to do just as much work for you as we would if you were divorcing. It is possible to prepare an agreement that governs your rights and responsibilities with your spouse during a period of separation, but we would not call it a separation agreement, but rather a marital settlement agreement. In that agreement, we would address all aspects of your marriage: where you each will live; where the children will live; the division of assets and debts; alimony; child support; custody and parenting issues; health insurance coverage; life insurance coverage; etc.
A marital settlement agreement is an enforceable contract once it has been signed by both parties. As long as both parties abide by the agreement, if all you want to do is be separated, then there is no need to file any papers with the court. However, if one person does not honor the marital settlement agreement during the separation, then the aggrieved party will have to file a complaint with the court. At that point, you must decide whether you are simply asking the court to enforce the agreement without getting divorced, or whether you would like to seek a divorce and ultimately incorporate the agreement into a judgment of divorce. The former avenue is called a non-dissolution proceeding, whereby you seek enforcement without ending the marriage; the latter avenue ends the marriage.
The final alternative to legal separation would be to enter into a marital settlement agreement with all of the provisions discussed above but then file in court for a limited divorce, or for what is also known as a divorce from bed and board. In New Jersey, a limited divorce means that all issues about your marriage have been resolved – except you remain technically married. All assets and debts can be divided, houses can be sold, parties can separate, and children’s issues – such as custody and parenting time – can be addressed. The only qualification is that under a limited divorce, you remain technically married for as long as you and your spouse agree upon, and neither party is free to re-marry until the agreement is converted to an absolute divorce (which resolves all issues of the marriage and dissolves the marriage with finality). Additionally, a limited divorce can only be granted with your spouse’s consent, and therefore, you cannot force your spouse to grant you a limited divorce if he or she wants an absolute divorce.
Why would anyone enter into a limited divorce in the first place? Many separating couples enter into a limited divorce as a way to allow for one spouse who may have pre-existing medical conditions or an inability to obtain health insurance of their own at an affordable cost to remain on the health insurance plan of their spouse. However, we advise our clients to exercise caution in such cases because not all health insurance providers allow for a non-employee spouse to remain on the group health insurance plan of the employee under a limited divorce.
If you have questions regarding the available alternatives to legal separation in New Jersey, contact the attorneys of DeTorres & DeGeorge today to schedule a consultation.
