NJ Separation Laws: An Introduction
Separation, in basic terms, is the first step in a legal relationship’s end. It’s a process between one marriage and a divorce, but not every married couple will reach the divorce point. In a legal separation, the couple has decided they no longer want to live with each other in the eyes of the law but have no desire to sever their legal bonds completely. Legal separation is always temporary.
Couples typically seek separation for the same reasons they eventually divorce: they have irreconcilable differences within the marriage and cannot see a way toward resolution. The difference is that a legal separation can sometimes present non-permanent solutions to those issues. It’s often a trial period to see whether a couple can work things out and reunite. In some cases , the separation period can last for a year or more, during which the couple will make a more educated decision about whether to proceed with the divorce.
Unlike divorce, legal separation does not formally end your marriage. The court will step in and set provisions for the couple during the separation, but the spouses remain joint property owners and tied by their vows.
One party can file a motion for divorce, after which(usually unless the parties agree) the waiting period becomes a period of separation. After the waiting period ends, the court will process the divorce, including distributing assets and creating custody agreements for children.
Comparison of Legal Separation and Divorce (NJ)
When couples in New Jersey consider separating, it is important for them to understand how the law views separation as compared with divorce.
In New Jersey, there is no formal legal status of "separation." Therefore, simply moving out is not thought of as a legal separation. However, a period of physical separation can be considered when determining the grounds for divorce.
The only ground for divorce in New Jersey is irreconcilable difference, which is New Jersey’s version of no-fault divorce. If a period of separation occurred during the marriage and the parties believe the period of separation was the cause for the breakdown of the marriage, the parties may use the 18-month separation period as grounds for a divorce.
Because there is no formal legal status of separation, couples must be legally divorced in order to fully sever their legal relationship. Couples are unable to file tax returns as married if they are merely separated and still have a legal obligation of spousal support, also known as alimony, to each other.
Adultery or desertion are two of the grounds for divorce in New Jersey. If, however, the parties preferred not to pursue divorce, adultery or desertion is often one of the primary issues to be resolved. Therefore, the more common legal alternative to a divorce is legal separation.
A legal separation can be achieved through a court order or a written agreement that sets forth the parties’ rights, obligations and terms related to their separation. A legal separation is generally more formal than living apart for a period of time. Legal separation and a divorce differ in that a legally separated couple remains married but does not live together. However, all the other legal consequences and issues of divorce apply during the period of separation.
Legal separation offers many of the benefits of divorce, but each party remains responsible for any health insurance policies, pension plans and property held jointly. Also, the parties have some control regarding the terms of their relationship and how the case is handled in the court system.
In some respects, a legal separation may bog a couple down in responding to their legal obligations but is a good idea in circumstances when the parties need some time to consider the consequences of a divorce. A legal separation can also be beneficial to parties who need to obtain health insurance coverage under one party’s policy during the pendency of a divorce.
Separation Agreement Filing (NJ)
After negotiating and finalizing the terms of your agreement, you must file a copy of the separation agreement with the Clerk’s Office in the trial court where the divorce action is pending. The only court that may enter a Final Judgment of Divorce is the Superior Court for the County in which the divorce action is pending.
In New Jersey, typically a judicially approved separation agreement becomes a Part of the Judgment of Divorce or is incorporated by reference in the Judgment of Divorce when it is approved by the court. If you don’t yet have an active divorce case, or for whatever reason you do not want the agreement to become a Part of the Judgment of Divorce, as opposed to a contractual obligation, you simply do not include it in your Initial Notice of Intention to File a Complaint (the Divorce Complaint). If that’s the case, the agreement remains a contract between the two of you and should be filed in a separate action commenced at the court in which the divorce action is pending (Essentially, the Brown and Jones couple would have two cases pending in Middlesex County – the Divorce action and the Separation Agreement contract action).
Effect on Property/Asset Distribution
When you have lived as a married couple for years, you have probably obtained a number of significant assets. It could be a house, a cottage, your 401k savings or a mutual fund. Any of these assets is going to have a say in what happens when you and your spouse separate. The actions of the couple during the marriage are what dictate how these assets are divided. As even a short-term marriage in New Jersey usually considers asset division and alimony more of a factor if at least one of the partners gave up a career or took on the traditional role of a homemaker. Homemakers should not just get nothing out of an asset division because he or she stayed home and raised the children. When it comes to the three different types of divorces recognized in New Jersey, the same rules apply to the separation: As already mentioned, many couples have assets that they acquire during their marriage. This property is called marital property, and it includes anything that was bought with marital assets earned during the period of marriage. Although you may have acquired a lot of assets as a couple, the more significant items that you need to consider are: If you and your spouse are separating, it is highly recommended to retain the services of a qualified family law attorney. He or she will make sure that you and your spouse follow the New Jersey laws and reach a fair decision when it comes to the aforementioned assets.
Custody and Child Support During Separation
Much of how child custody and support are handled during a period of separation in New Jersey depends on the particular circumstances of a married couple and what parameters they both agree to, even if they aren’t yet divorced. The temporary orders made by the court for custody and support often turn into the final orders made after the divorce.
The New Jersey Parentage Act requires that judges decide child custody disputes in the child’s best interests and determined that, with regard to joint custody, "it is in the best interest of the child" to award joint custody if both parents agree to it. The law requires judges to consider, among other factors:
If parents cannot agree on child custody during the trial separation, judges will issue temporary custody orders, which generally include sole custody of children to one parent. These temporary orders will often carry over into the decree of divorce .
For unmarried parents, custody is determined by a court-issued order, or in the absence of a court order, the parents have joint custody of any children. And, unlike parents with child support obligations who have been married, parents with court-defined child support obligations and no marital bond may have less guideline support provided by the Child Support Guidelines tables.
Parents should consider these guidelines when making temporary arrangements; however, it bears emphasizing that parents should not simply input their income into the spreadsheet and assume that they will have a sound plan in place. The tabulations provided by the tables are simply a guideline, and parents can, and often do, deviate from the guidelines. This doesn’t mean child support awards will not increase or decrease, but courts will usually require that a substantial rationale be provided to warrant a deviation from the established guideline ranges.
Spousal Support in a Legal Separation
Spousal support is another complex issue and one that you will want to discuss with your attorney as well. For one thing, you might not think that just being "separated" from your spouse will have any effect on your assets, but it’s important to understand that the courts in New Jersey look at separation differently than you might. In a true legal separation, a couple still remains married in the eyes of the law. Unless you, through an attorney and the courts, use the term separation in your divorce proceedings – as the spouses involved take up separate residences – courts will treat you as living "separate and apart" for purposes of equitable distribution. In other words, the date you separate can identify trends in your financial lives that become an important factor during your proceedings regarding alimony.
As with all of the terms used in divorce matters, alimony is subject to various definitions. There are five types of alimony:
Although many factors come into play when alimony is decided, basic principles are that the longer the marriage, the longer alimony may last; higher earning spouses generally will pay more alimony than those with lower earnings; alimony may be for rehabilitative purposes – to get the supported spouse further along in education or training for employment; and alimony may be permanent support. Generally, this means the supported spouse can live comfortably, without deprivation, in the same style the couple enjoyed during the marriage.
In New Jersey, the Alimony Reform Act established the guidelines for the award of alimony. Just as the grounds for divorce have changed in New Jersey, so too have the factors that play a part in alimony.
As you can see, the world of NJ divorce laws can be incredibly complex. Rest assured that if you make a decision about the terms of your divorce based on the information we provide, we are standing by to make sure the legal document that goes to court meets the standards of state precedent and regulations. We use current resources and follow practicing attorneys in the state to keep our information up-to-date, and we want to make sure it is helpful, not misleading.
Reconciliation or Continue with Divorce
With today’s volatile economy, couples may decide on legal separation rather than filing for divorce. What happens after the period of separation is important to understand. In New Jersey, when a couple separates, it is recommended that the parties decide immediately whether they wish to reconcile or obtain a divorce. The decision does not have to be made in the initial stages of separation. However, once reconciliation has been considered an option, the approximately 18 month waiting period is frozen until a decision is made to reunite, have a trial, seek other remedies or proceed with a final divorce settlement.
If the parties decide to reunite, the financials filed with the court/proposed settlement proposal are destroyed. The parties can then either begin a joint allocation of assets and debt division or separate under a new separation agreement. If the parties separate again, and subsequently file for divorce, the court will decide the proper equitable distribution of assets and debts according to the date of the second separation, not the initial separation date. If the parties decide to file for divorce, the courts will examine the entire negotiation process. The separation agreement is treated like any other marital settlement agreement, and its contents will be considered by the court in deciding the equitable distribution of assets. If the period of separation lasted less than 18 months, the parties can use the date of separation as their date of valuation or alternatively they can use the date of the marriage until the date of filing. If the parties reconcile at some point, but separate again, the courts will examine this second period of separation to determine whether a trial is necessary, or whether they can use the first period of separation as the date of valuation of the marital assets. Once the parties are separated again, they have the right to file their claims even if they have started the reconciliation process again. If the parties divorce, they must typically wait several months to finalize the divorce. Reconciliation is still an option during this time frame, however, it is very rare in divorce proceedings. If the Separation Agreement contains no unusual circumstances, the Marrin case would likely hold true that it would be enforceable.
Obtaining Legal Assistance Regarding NJ Separation
It is important to get legal advice when you are going through a divorce or separation process in NJ. An experienced nj family law attorney will guide you through many domestic law matters that may arise preceding, during, or after a separation process. While every family is different, there are very specific and comprehensive guidelines in NJ law that apply to all separation processes . Some of those issues include Parenting Time & Residential Custody, Support (Child Support & Spousal Support), Property Division (Equitable Distribution), Domestic Violence, Child Dependency (DCP&P), Adoption, Kinship Legal Guardianship, Guardianship, Division of Assets, Real Estate Assets, and Debt.
We have created this comprehensive guide to NJ separation law so that the public can understand the separation process. If you find yourself going through a separation in NJ, you need to understand all family law matters that may arise during the process. We highly recommend you get legal guidance and advice by an experienced family law attorney in NJ.