Sometimes clients aren’t quite ready to become fully divorced but want to live apart from their spouse for a time. This could be because they may want to reconcile at some point, or perhaps they have religious concerns which prohibit divorce. There is no legal separation in NJ. However, the state has a divorce from bed and board. Below are some frequently asked questions about separation and a bed and board divorce.
Yes. A separation agreement can serve as a substitute for the lack of a formal, legal separation in New Jersey. These agreements should lay out the terms for the duration of a married couple’s period of separation.
Spouses should negotiate what they want regarding the division and use of property, alimony or child support, and issues of child custody and possession. Once the parties reach an agreement about the terms and conditions of their informal separation, they are wise to seek legal representation and assistance. An experienced New Jersey divorce attorney will draw up a formal agreement which memorializes the terms and conditions that will govern the period of separation. The couple will then sign the agreement and it does become a binding contract between them.
Keep in mind that the executed or signed New Jersey separation agreement is not filed with the court. There is no power of a court order behind this agreement. As referenced a moment ago, a separation agreement is treated like any other contract in the Garden State. Therefore, if one party breaches the contract, they can be sued by the other in court to enforce it. This is often a good option for parties if they want a trial separation and are considering the possibility of reconciliation at some juncture in the future.
Because there is no legal separation in the state of New Jersey, courts have developed the option of what has become known as divorce from bed and board. This is also known as a limited divorce.
A divorce from bed and board fairly can be called something of a hybrid of what is known in other states as a legal separation and a total (or absolute) divorce. In a New Jersey divorce from bed and board, a married couple ends or terminates the financial aspects of their marriage. Essentially, any property that one spouse acquires once the limited divorce is finalized will be considered their separate property and will not be subject to any division at a future time. Similarly, debts accumulated by one of the parties will be considered separate and distinct and not the responsibility of the other spouse.
Divorce from bed and board is an attractive option for couples that cannot divorce due to religious reasons. It’s also utilized frequently by couples who have been in a long-term marriage and have no plans to remarry. For example, this course of action permits parties the ability to remain on the same health insurance policy.
According to New Jersey Statute 2A:34-3, a divorce from bed and board can be granted for the same reasons as a regular divorce. In order to accomplish this objective, both parties must seek this relief. There must be evidence that supports what otherwise would be an absolute divorce. In addition, there must be a demonstration that the other spouse will not prejudiced from seeking a full divorce later. As alluded to a moment ago, it is vital to note that unlike a divorce, both parties must agree to a divorce from bed and board.
Couples must remember that they are still legally married after obtaining a divorce from bed and board. Therefore, if spouses reconcile with each other in the future, then the judgment can be revoked. It is as if the divorce from bed and board never occurred. Similarly, either party can obtain an absolute divorce by filing a formal petition for one following the issuance of a divorce from bed and breakfast. Parties cannot remarry anyone else if they obtain only a divorce from bed and board – otherwise, they will be committing bigamy.
Yes, there are some negative aspects associated with a divorce from bed and breakfast. For example, if a spouse dies and has disinherited the other party in their will, then the spouse is not entitled to make any claims against that estate. New Jersey courts have held that any issues of equitable distribution were made at the time of the petition for the divorce from bed and board. To that end, if one spouse happens to win the lottery or receives another sort of financial windfall, the other spouse would not be entitled to a single penny.
Getting a separation agreement or going through with a bed and board divorce is a highly personal decision. You should proceed only after careful consideration and consultation with an experienced New Jersey divorce lawyer to fully understand your options.
If you and your spouse decide to utilize a separation agreement, this can often be cheaper and less stressful. You will avoid going through a formal court procedure and can make amendments without much expense if it turns out your terms of separation are not working. However, any agreement is enforceable as a contract only rather than a court order.
Separation agreements preserve the marital property of the parties as well. This means that either spouse can inherit from the other by claiming an elective share.
Keep in mind that there negative aspects to a separation agreement as well. For example, if one party is sued or takes out a financial judgment, there is a chance that this will be attributed to the marital estate, resulting in the liability of both spouses.
In a divorce from bed and board, the property is divided up when the order is signed. Spouses may be able to remain on each other’s health insurance plans. (As an aside, this is a controversial benefit associated with divorce from bed and board.) Some New Jersey lawmakers are proposing to amend the statute to prevent spouses from taking advantage of this feature.
Couples can benefit from survivorship or beneficiary provisions in pensions and insurance, and social security retirement benefits are unaffected. However, a divorce from bed and board ends the ability of spouses to claim an elective share in the event of the other party’s death.
A divorce from bed and board is the closest thing to a legal separation in the state of New Jersey. While the parties remain married, it is still a significant decision to make. This kind of separation can have considerable effects on your financial situation and future. You should speak with an experienced family lawyer about the options you have if you are not yet ready to divorce your spouse.
If you have questions about a legal separation in NJ, call the Law Offices of Peter Van Aulen today at 201-845-7400 for a consultation.