Legal Separation in New Jersey: What to Know
Legal separation in New Jersey is when a husband and a wife document and formalize that they live separate and apart for whatever reason. This is not a divorce. A spouse may seek legal separation when he or she wants to live apart from their spouse but does not necessarily want a divorce.
Why a legal separation may be preferable for some: When parties do not want to get divorced for religious reasons. Parties may have children in their home (especially children that are special needs). Divorce may not be affordable for the parties. Parties may want to try and stay married to see if they can work through their problems and re-establish their relationship. In some instances this arrangement may be in a husband or wife’s best interest as the other party may be diagnosed with a terminal illness and may bring about future support issues. It also may be in both parties’ best interest to document in writing their agreements on how to handle financial issues while separated, parenting time and parental control issues while separated, and setting expectations while separated in the event one of the parties is hurt or dies (these are all issues that would need to be addressed in a divorce action and if the parties have decided to get a divorce at some point in the future, which they do not know when it will happen, these agreements tend to follow them into the divorce action as marital agreements) .
Many people confuse living apart from their spouse as being legally separated. Candidly speaking, a legal separation in New Jersey is really not much different than living apart from one’s spouse. A party who lives healthily apart from the other without any agreements drafted and signed will not have any legal remedies if, for example, their spouse refuses to pay child support or support. The party who is living happily apart from the other will have to go through court to get an order to provide them child support or support. The big question is why live apart and have the hassle of going to court? Why not just file for divorce and get it done? If you are living separately for a specific reason, it may be a better option in the long run to get a divorce decree and obtain finality.
A legal separation in New Jersey is awarded in the judgment of divorce. In some respects, a legal separation is a hybrid of a divorce action and a civil union or domestic partnership action.
Why You’d Opt for Separation Over Divorce
Some people may choose legal separation in New Jersey over divorce for a number of personal, religious or financial reasons. For individuals who have religious objections to divorce, legal separation enables them to preserve their religious beliefs while having the benefits and protections of a divorce.
In addition, individuals who have not lived in New Jersey long enough to file for divorce may utilize legal separation while waiting to meet the state residency requirements. For others, legal separation may be a way to live apart legally while still providing support and other benefits under health insurance coverage. Legal separation may be preferable for couples who are not sure if their marriage can be salvaged and want to take time to live apart to see if reconciliation is possible. People may also choose to separate so they can get their personal assets and finances in order while remaining legally married to their spouses.
Some benefits of legal separation include the fact that individuals remain married, which may allow the family to keep benefits like insurance coverage, social security coverage and pensions. Those who do not have to use these benefits now may need them later in life. Legal separation allows spouses to stay married while still providing assets for their children to provide them with a stable home.
Another reason spouses may choose to separate is if one parent is the primary caretaker for the children. In this scenario, the family can avoid the expense of obtaining two places to live. Having some money coming in from the other spouse by utilizing legal separation may help the other parent provide child support payments if the parties ultimately divorce.
How to Get a Legal Separation in NJ
In New Jersey, an individual can obtain a legal separation from a spouse through the filing of a complaint. Most people mistakenly believe there is a separate case for separation but the truth is that legal separation is the same as filing for divorce as certain courts will treat it the same as a divorce. However, in either situation, there are certain procedural steps that must be followed in order to obtain separation or a divorce.
1. Drafting and Filing of the Complaint
To legally separate or obtain a divorce, you must draft a civil complaint and file it with the court. This is the most technical part of the process since it has to follow a specific format in order to be properly filed with the court. A family law attorney would have experience with this but you could also download the necessary forms and instructions from the New Jersey Courts website at nj.gov/judiciary/
2. Service of Summons and Complaint
Once the complaint is drafted and filed with the court, it must then be served on the spouse who filed for separation. At this point in time, you are at the mercy of the court, as they will appoint a trial date for the claim that you filed. This will be provided to you in the form of a summons by the Clerk’s Office of the court where your complaint was filed. At this point in time you must serve your spouse with this summons and complaint. This service has to be completed within 35 days of the return date. The consequences of not serving a complaint within the allotted time is that your court date will be dismissed for lack of prosecution.
3. Response to the Claim
The separation action that was commenced by filing the complaint will be treated the same way as a divorce action. The responding spouse will have 35 days from being served with the summons and complaint, plus an additional 5 days if they are served by mail, to file his/her response and serve the same onto the plaintiff. Typically the response is filed with the court and a certificate of service is provided to the court within the 35 day time period.
4. Adjournment
If the responding spouse is not able to respond within the 35 day time frame, he/she can file an application with the court for an adjournment (extension).
5. Agreement and Judgment
If the parties cannot agree on the terms of the separation then the court may grant a judgment of separation following a period of mediation. If the spouses find themselves unable to agree on the terms of their separation, the court will order them to mediate the reason for separation.
Rights and Duties While Separated
The rights and responsibilities of each spouse during a legal separation in New Jersey can be complex, but it is important to be aware of them to ensure that your interests are protected. This section organizes the law and duties on a practical basis.
What Are the Legal Rights and Responsibilities During Legal Separation in New Jersey? A legal separation allows a couple to continue the relationship while living apart and separating certain assets. Entitlement to Spousal Support In a legal separation, New Jersey courts can grant spousal support, also known as alimony or spousal maintenance, but there is no automatic entitlement like in a divorce. Parties must first secure a divorce complaint. Courts will likely consider the same statutory factors that apply in divorce proceedings to determine spousal support. Primary considerations include the length of the marriage and other specific requests of both spouses. Custody and Parenting Time Parties can secure an order for child custody during a legal separation. The legal separation and divorce are similar in this respect. Typically, courts follow the same standard as during a divorce in making a decision on child custody matters by issuing a ruling deemed to be in the best interests of the children. Child Support During Legal Separation Parties who are legally separated can obtain child support orders under New Jersey laws. However, the court will not award retroactive child support to cover the time prior to filing the complaint. The primary determining factor in child support cases is the needs of the child and the ability of the parent to pay. Property Distribution During Legal Separation A legal separation does not involve equitable distribution of assets acquired during the marriage. The court may issue temporary orders regarding property issues while the legal separation is in effect, though those awards are also subject to change until the final divorce decree.
Separation Agreements: Essential Inclusions
Whether or not to separate or file for divorce can be a thought provoking decision. In some cases, there is no other choice and the parties have no choice but to divorce. Sometimes, however, parties are faced with the decision of divorcing or legally separating. Legal separation means the spouses will remain legally married but live apart. Like its former status, the couple must agree on the terms of the legal separation, such as parenting time and support payments. Many couples who are unclear about the dissolution of marriage process or are merely delaying the decision find themselves better off entering into a legal separation. A legal separation agreement is similar to a marital settlement agreement. In this written contract, the parties agree on the division of their property and the responsibilities of each party. The term legal separation is occasionally used in divorce litigation to describe an agreement between the parties to defer legal action or to describe a temporary order pending divorce. A legal separation may also be used in a case of domestic violence where one party obtains a restraining order and a spouse must stay away from the marital home during the pendency of the action. Once the victim returns to the marital home, he or she can either return or agree to live apart. There are several issues that are typically resolved in a legal separation agreement, including:
Custody and parenting time – In general, custody is awarded jointly in both legal separation and divorce proceedings . The parties must come to an agreement on how they will exercise custody and what the parenting time arrangement will be.
Division of property – If the couple was married, they must come to an agreement on how they will divide their assets. This is very different to divorce where the court will likely equalize their assets under equitable distribution.
Financial support – This also applies to both legal separation and divorce. The court may not be involved in either process, but it is always a good idea to seek out a legal professional to help you with these matters.
Spousal support – For legal separation or divorce, spousal support is not mandatory, but many couples choose to agree on a support order.
Child support – This part of the agreement is mandatory. In New Jersey, child support is presumed to be in the best interest of the child, so the courts are more involved in how child support is determined.
Marital health insurance – Similar to joint custody, health insurance is an issue that is typically shared during legal separations and divorce after the age of majority. Under federal law, a dependent may stay on a parent’s employer-provided health insurance until age 26. When support is on the table, the parents may be required to maintain coverage until the children are no longer dependents.
Impact on Kids of Separation
If you have minor children, it is natural to have concerns about how separation may impact them. When working through a legal separation, an important consideration is to determine who will have custody of the kids, how visitation will be determined, and how to ensure that financial and emotional support is provided for them. Custody and visitation are typically worked out by the parents, often with the assistance of their divorce attorneys. You may be able to reach an agreement with your spouse to provide custody of the kids to one parent with visitation provided for the other parent. Alternatively, you may be able to work out joint custody where both parents share physical and legal custody. Physical custody refers to where the kids will spend their time, while legal custody pertains to decision-making over the kids’ health care, education, religion and extra-curricular activities. Joint custody provides that parents will share in the decision-making process. With physical custody, the kids may or may not spend equal time with their parents. All decisions regarding custody of the children and visitation should be put down in writing. You should consult with a qualified NJ family lawyer, who can advise you on your prospects for a negotiated resolution concerning these matters. If you are unable to reach a decision with your spouse, you can file a motion requesting temporary relief from the court until a formal divorce action is filed or the temporary relief order is extended pending your final judgment in the matter. The final divorce judgment may be based on your previously negotiated agreement, or it will be submitted to the court for approval based on the factors set out in N.J.S.A. 9:2-4(c). Courts prefer that parents work out a parenting plan, and they will generally defer to such an arrangement if it is reasonable and in the best interest of the children. In all cases, the well-being of the children is the heart and soul of custody and visitation determinations. While you and your spouse are working through a legal separation, your children should be protected against any threats to their safety, security or stability. Where domestic violence is present, it is critical to consult with an attorney as soon as possible to secure a restraining order to protect the children and yourself. Abuse victims can also seek exclusive possession of the home, alimony, and child support. However, it is important not to simply walk out of the home to leave the kids there alone. The impact of domestic violence on children can be profound. Studies show that kids exposed to domestic violence may be withdrawn, fearful, refuse to go to school and revert to earlier stages of development. Although many parents worry about separating from their kids, it is important to seek help from a qualified NJ divorce lawyer to work through the process to safeguard the welfare of the children. It is also vital to take steps to protect yourself and your spouse from domestic violence. Generally, if you and your spouse agree on terms of custody and support, this may become part of your separation agreement. However, if you are unable to agree or there is a threat to your safety, you should take steps to protect yourself from your spouse.
When to Convert Your Separation into a Divorce
Once a legal separation enters into effect, it is not unusual for spouses to decide that they need even more space from one another. In some cases, the length of time that a legal separation has been in effect can make divorce proceedings easier and simpler.
A spouse who is determined to end a marriage after a legal separation may file a Complaint for Divorce, which essentially removes the legal separation agreement from the divorce complaint. At this point, the case will be treated as a standard divorce case.
An uncontested or amicable divorce has the following legal requirements:
In couples who can agree on all divorce related issues, the divorce can be finalized quickly. In some cases, a judge can be persuaded to waive the six-month waiting period if there are truly no remaining issues between spouses.
If there are any disputes that cannot be resolved through agreement, then a contested divorce is often necessary. In such cases, the court will spend time determining child custody, visitation, alimony, and division of debts and assets.
The net result of a legal separation is to replace the unmarried status of the parties with a legally separated status. Successful conclusion of the divorce action is required to remove the separated status and return the parties to an unmarried status.
Legal Help and Resources
In navigating the complexities of a legal separation in New Jersey, it is crucial for couples to seek proper legal assistance. An attorney experienced in family law can help explain the various options and consequences, ensuring that individuals understand their rights and obligations throughout the process.
Finding the right legal representation is key. When searching for an attorney, individuals should look for someone with experience specifically in legal separations and other related family law matters. A knowledgeable attorney will have a thorough understanding of New Jersey’s laws surrounding legal separation and can provide valuable advice on how to proceed.
Legal assistance may also be needed in regards to specific agreements such as a Property Settlement Agreement (PSA), where terms are decided with all matters finalized, or No-Fault Dissolution. A PSA details how assets and liabilities will be divided between parties without going through the full divorce process. Legal assistance can be invaluable here, as an experienced attorney can help negotiate the terms of the PSA to ensure both parties’ best interests are represented.
No-Fault Dissolution , the alternative to legal separation in New Jersey, is a provision in which a spouse can dissolve a marriage without proving fault-based grounds. This means neither spouse needs to be accused of adultery, abandonment, or cruelty. In 2007, the New Jersey legislature amended its law to allow for No-Fault Dissolution by way of Default or Default by Affidavit and Consent. If one spouse is served but does not file a response, within 35 days, a divorce can be obtained through Default. If both spouses agree to a Dissolution, a divorce can be granted by way of Default by Affidavit and Consent.
Regardless of the path pursued, thorough research into New Jersey’s legal separation laws is essential before proceeding. There are many resources available to help individuals better understand both the legal separation process and potential consequences, including mediation as well as obtaining the help of neutral experts such as accountants, care coordinators, child psychologists, financial planners, therapists and other professionals who specialize in financial and mental health areas.