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FAQs: Legal Separation vs. Bed and Board Divorce

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.

1. Can my Spouse and I Get a Separation Agreement if We Choose to Live Apart?

Yes. A separation agreement can serve as a substitute for the lack of a formal, legal separation in NJ. 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 agree, an attorney will draw up a formal agreement which memorializes these issues. The couple should sign the agreement, but it is not filed with the court. There is no power of a court order behind this agreement, although it is treated just as a contract. 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.

2. What is a Divorce From Bed and Board?

Because there is no legal separation in NJ, courts have developed the option of divorce from bed and board, also called a limited divorce. This is a hybrid of a separation and a total divorce. The couples end 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.

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. This way, parties may be able to remain on the same health insurance policy.

3. How can I Get a Divorce From Bed and Board?

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 if both parties request relief and they can show evidence for the causes which merit the divorce and will not prejudice either party from applying to a full divorce later. Unlike a divorce, both parties must agree to a divorce from bed and board.

Couples must remember that they are still legally married, even after obtaining a divorce from bed and board. Therefore, if spouses reconcile with each other in the future, then the judgment can be revoked, and the effect 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. Parties cannot remarry anyone else if they obtain only a divorce from bed and board – otherwise, they will be committing bigamy.

4. Are There any Downsides to Getting This Kind of Legal Separation in NJ?

Yes. For one, 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, their spouse would not be entitled to a single penny.

5. Which Option is Right for me?

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 expert.

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, meaning that either spouse can inherit from the other by claiming an elective share. But, there are also risks. 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. This is a controversial benefit to the plan, and some 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 NJ. 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.

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