Some states have specific laws that allow couples to file for a legal separation instead of a divorce. A legal separation settles issues that would be decided in a divorce, but the couple remains legally married.

New Jersey does not recognize legal separation. The law does not provide a court process for a couple to legally separate. However, there are options for couples who want to live separately and apart without legally ending their marriage. 

Understanding your options for legally separating from your spouse is essential to protect your rights. In this article, we’ll discuss legal separation vs. divorce from bed and board.

Why Do Couples Decide to Separate Instead of Getting Divorced?

A couple may not want to live together but do not want to end their marriage. Reasons why couples choose legal separation versus divorce include:

• The couple wants to have a trial separation to determine if they want a divorce or to continue working on their relationship
• Religious beliefs that do not recognize divorce
• The couple wants to retain the financial advantages of being married, including filing joint tax returns, remaining on a health insurance policy, etc.
• The couple believes a legal separation is better than a divorce for their children
• A couple may believe that a legal separation is less costly and complicated than a divorce

Even though New Jersey does not have a court process for legal separation, couples can formalize an agreement for a legal separation. They may also pursue a divorce from bed and board through the courts.

New Jersey’s Process for Divorce from Bed and Board

A divorce from bed and board is a court process for addressing specific issues that would be resolved in a divorce. A separated couple petitions the court requesting an order resolving issues such as property division, child support, and alimony. The purpose of divorce from bed and board is to protect the couple’s financial interests and their children’s well-being during a separation.

The process begins when a spouse files a complaint with the family court. Even though one spouse initiates the process, both spouses must agree to a divorce from bed and board.

The spouses agree on how to separate their property and debts. They also agree on terms for alimony, child custody, and child support. The court reviews the agreement to ensure the terms for custody and support are in the best interest of the children.

An advantage of divorce from bed and board is that any property a spouse obtains after the court enters an order is separate property. However, the couple maintains some advantages, such as sharing health insurance and filing joint tax returns.

The couple remains legally married. If they wish to marry someone else, they must seek a divorce decree from the court.

Formal Separation Agreements in New Jersey

If you do not wish to involve the court in your legal separation, you and your spouse can enter a legal separation agreement. You remain married, but you resolve issues that a divorce would address. A benefit of a legal separation agreement is there are no formal requirements, unlike a divorce from bed and board.

A legal separation agreement is a written contract. When the parties sign the agreement and it is notarized, the agreement is legally binding in court. A couple may include terms in their separation agreement to resolve issues, including:

• Property division
• Division of debts
• Child support
• Child custody
• Alimony
• Medical bills and health insurance premiums
• Possession and use of joint property
• Parenting time and parental responsibilities

A separation agreement avoids the time and cost of filing a court case. If a spouse violates the terms of the agreement, the other spouse can take them to court to enforce the terms. The agreement remains in effect until the couple reconciles, dissolves their marriage, or terminates the agreement in writing.

Do I Need to Hire an Attorney for a Legal Separation Agreement in New Jersey?

Because separation agreements are legally binding, it is wise to have legal counsel. An attorney ensures that the separation agreement meets all requirements for an enforceable contract in New Jersey. Your lawyer also ensures that the terms of the agreement are fair.

Furthermore, hiring an attorney to prepare a separation agreement reduces the risk that the court may find the agreement unenforceable. Reasons the court may set aside a separation agreement include:

• The agreement was entered into under duress
• One or both spouses fail to fully disclose assets and/or liabilities
• A spouse was coerced into signing the agreement
• The parties did not understand the legal consequences of entering an agreement and did not have legal counsel before signing the agreement
• The agreement is unconscionable (i.e., the agreement is so unfair it suggests abuses during the negotiations
• One or both parties were unaware of their legal rights before entering the separation agreement

If the court sets aside the separation agreement, none of the terms are enforceable. A spouse would need to petition the court for a divorce if the other spouse refuses to enter a fair agreement or petition the court for divorce from bed and board. Having an attorney draft the separation agreement can avoid a costly legal battle if you find out the contract is unenforceable and your spouse refuses to work with you to resolve disputes and conflicts.

What Should I Do? – Dissolution of Marriage, Legal Separation, or Divorce from Bed and Board

Each of the options for separating from your spouse has pros and cons. The option that is best for you and your family depends on the unique circumstances of your situation.

An experienced Red Bank family law attorney helps you weigh the potential pros and cons of each situation based on your needs and priorities. With this information, you can make an informed decision that gives you the best chance of achieving the outcome you desire.

An attorney also helps you look toward the future. Your choice can have significant impacts on your future. It is important to consider these matters before deciding whether you want to legally end your marriage now or seek a legal separation.

Learn More During a Free Consultation with a Red Bank Legal Separation Lawyer

Contact The Law Office of Jennifer J. McCaskill, LLC, to discuss your situation with an experienced Red Bank divorce lawyer. The best way to protect your interests and future is to work with an experienced family law attorney. Regardless of whether you want a divorce or a legal separation in New Jersey, working with an attorney gives you the best chance of achieving your goals. 

Contact Our Office for a Free Case Evaluation With a Monmouth County Divorce Lawyer

The divorce process is complicated. Having sound legal advice throughout the divorce process is the best way to protect yourself and your children. Call our law firm at (732) 747-1882 to schedule a free case evaluation with an experienced Monmouth County divorce attorney from The Law Office of Jennifer J. McCaskill, LLC.

The Law Office of Jennifer J. McCaskill, LLC
157 Broad St Ste. 111 Red Bank, NJ 07701
(732) 747-1882