The term “legal separation” is used nationwide, but the process can be different depending on your state — and sometimes even within the same state. Technically, New Jersey doesn’t recognize legal separation, at least by that name. You don’t have to file a complaint with the court if you and your spouse want to live apart. You can do so, however, if you want to.
The most common way of separating in New Jersey involves negotiating and signing a settlement agreement. The agreement can resolve issues of custody, parenting time, child support, and spousal support, setting the terms under which you and your spouse will live apart. The agreement becomes an enforceable contract when signed by both spouses. If you eventually decide to divorce, and if the agreement also provides for issues of property and debt distribution, you can ask the court to incorporate its terms in a divorce judgment as a property settlement agreement. You can have an easy, uncontested divorce. Otherwise, there’s no need to file the agreement with the court if your separation is open-ended.
New Jersey also recognizes another form of legal separation called a Divorce from Bed and Board. This option does involve filing a complaint with the court, and you must cite one of the same grounds for divorce that you would use if you were to file for an absolute divorce instead. You can then ask the court to decide custody, visitation, and support issues for you. You can still reach an agreement on these things and submit it to the court without actually ending your marriage. Both you and your spouse must both agree to this option. If you later decide to divorce entirely, you can ask the court to convert your judgment into one of absolute divorce.
Property earned or acquired after the date you file for a Divorce from Bed and Board is not marital property. This means that if your spouse wins the lottery the next day, you don’t get a share of that money — it’s her separate property. But because you technically remain married, you’re still entitled to collect any government benefits you might be eligible for as a spouse.
This type of legal action is rare in New Jersey because it’s usually much easier and less expensive to simply enter into a separation agreement. Historically, spouses have used this option when they want one spouse to remain covered by the other’s health insurance, something an absolute divorce prevents. But insurance companies, as well as New Jersey lawmakers, have caught on to the arrangement, and legislation has been proposed to close this loophole.
Finally, you have a third choice if you want to separate in New Jersey. You can file a complaint with the court asking a judge to simply order terms for such things as custody and child support without ending your marriage.
Your best option often comes down to your unique circumstances. If you want to live apart from your spouse but you’re not quite ready to divorce yet, speak with a New Jersey divorce lawyer about the best way to safeguard your rights. Call the Law Offices of Peter Van Aulen for a free initial consultation.