Is Legal Separation a Viable Option for New Jersey Residents?
One of the most common divorce issues is legal separation. Many people want a separation and divorce. At the Micklin Law Group, one of the most common question to ask a divorce attorney is about NJ divorce law and the potential benefits of a legal separation. The first issue that a person considering legal separation must consider is that, unlike many other states, New Jersey Divorce law does not recognize “legal separation”. This is important to keep in mind because you can elect to move out of the family residence, but this does not excuse you of your financial and parental obligations to your spouse or children. Further, you will not have a pending court proceeding where you can seek alimony, child support, distribution of property or parenting time with your children.
Although there is not process actually referred to as “legal separation” in as opposed to divorce in New Jersey, this does not necessarily mean that there are not viable options for living apart and protecting your financial interest and parenting rights without filing for divorce. When married couples wish to live apart without dissolving their marital status, they may do so contractually be executing a “Marital Settlement Agreement,” “Property Settlement Agreement” or “Interspousal Agreement” without court involvement. A married parent can also file in court for child custody and visitation orders as well as alimony without actually filing for a marital dissolution. Mediation is also a good option because parties can agree to a legal separation and outline his/her responsibilities.
Another option available for divorce planning to married couples who do not wish to file for divorce for religious reasons or other considerations like availability of health insurance or other benefits is a “Divorce from Bed and Board.” This process authorizes the court to make orders regarding essentially all of the issues in a divorce proceeding without impacting the parties’ marital status. The parties can negotiate a resolution of property and debt division, alimony (spousal support), parenting plans (custody/visitation) and child support, or the court can make orders on these issues if the parties cannot reach an agreement.
It is important to understand that whether these issues are resolved in the context of a divorce or through some other alternative that leaves marital status intact, an experienced New Jersey legal separation attorney can assist you in assessing the best option for your needs. Regardless of the option you choose, legal counsel is important so that you understand your rights and how the court would likely resolve a certain issue. When parties who are separating or divorcing have legal guidance, they can avoid crucial mistakes that slow down the process or result in unintended consequences that undermine the fairness of the agreement.
If you have entered into a separation agreement, an experienced New Jersey legal separation lawyer may be able to assist you in having a court set the agreement aside based on any of the following grounds:
- Unconscionable agreement (i.e. so unfair no reasonable person would agree)
- Unfair distribution of the assets
- Duress or coercion employed to obtain agreement
- Mutual mistake of fact (such as reliance on an erroneous property appraisal)
