Legal Separation in New Jersey
New Jersey is one of only six states without a formal separation process; in the eyes of the State of New Jersey, a couple is either married or divorced. This can prove to benefit many struggling couples, allowing them to amicably split without the need to petition a court.
You probably have some questions about legal separation, and this post will answer many of the questions that you may have about separating from your spouse in New Jersey and help you to find the right option for you and your family.
Do not take any unnecessary risks by relying entirely on what you read on this or any other blog. Reach out to our office today to speak with NJ divorce lawyer Katherine Wagner.
What is a legal separation?
Legal separation is an alternative to divorce for people who do not want to continue to living together but who do not actually want to end their marriage. In many states, a couple is legally separated after petitioning the court to recognize their separation, but this is not necessary in the state of New Jersey. This does not mean that simply living apart constitutes a legal separation. Forty-four states have a formal process for spouses to split their affairs without dragging each other through a divorce court. New Jersey and Pennsylvania are among the six states that do not have laws for this legal approach.
Does New Jersey Allow for Legal Separation?
New Jersey does not have a specific legal process called “legal separation.” Officially, the only way to end a marriage aside from the death of a spouse is through a divorce. There is no title in the New Jersey Code about “legal separation”. However, there are some scenarios where a de facto legal separation may be possible with a cooperative spouse.
Filing for a divorce can be a lengthy and expensive process, often lasting over a year. And many couples facing marital troubles seek a solution less extreme than a total divorce. Fortunately, there are other options available in New Jersey. If you are not sure that you want to get a divorce then you should look into executing a separation agreement with your spouse.
A separation agreement is different than divorce in New Jersey
A written separation agreement is a contract, but it doesn’t dissolve your marriage. While some New Jersey residents are initially upset that they cannot use a legal separation as an alternative to a divorce, this is actually a hidden blessing. Since the process does not require court appearances or filings, it is often easier and less expensive than a divorce when spouses can cooperate. And by sorting your affairs outside a strict legal process, a divorce can proceed with less uncertainty and chaos should you choose to move forward.
You have other legal options besides divorce
Divorce is a process with which most people have little experience until something happens. It’s easy to assume that the only legally binding way to separate is through a full divorce. Thankfully, New Jersey has another option — there is a legal process known as a divorce from bed and board. After the divorce from bed and board is finalized, the couple will still be legally married, however, they will be considered to have had an economic divorce.
This accomplishes the same things many spouses desire from a legal separation and is more binding than a separation agreement. If you cannot accept a divorce due to religious convictions or simply wish to split affairs while remaining legally married, this may be the best option.
Separation for same-sex couples
New Jersey legalized same-sex marriage in 2013. Prior to this, civil unions were recognized by New Jersey. All civil-union partners were welcome to formally marry after the 2013 law. Those who did, or those married after New Jersey welcomed marriage equality in 2013, must follow the standard separation and divorce process. However, those who remained civil-union partners face unique legal challenges with custody and alimony matters and should consult a lawyer experienced with LGBT+ issues.
Do I need a lawyer for a legal separation agreement?
You place yourself at risk when you attempt to handle any divorce related matter without a lawyer’s advice. As an adult, you are legally free to enter into whatever contracts or agreements you desire, but entering contracts without a lawyer’s review is dangerous. This is especially the case if you are confused or uncertain about any of the clauses, something that you cannot trust your spouse’s lawyer to explain to you. Getting independent legal advice is also a good idea because it prevents parties from later saying they were at a disadvantage because they did not understand the agreement.
How long will a separation agreement take?
Since no court needs to be involved, a separation agreement can be reached as quickly as both spouses can agree on terms. The average separation agreement will be settled between both parties after several months of negotiation. It should be noted that all marital issues, be they custody of children, payment of obligations such as child support and alimony, and division of marital assets, must be included in your separation agreement in order for it to be valid. This process is quicker than a full divorce only when the parties are in full agreement on proceeding in this matter and when both parties are truthful about the extent of marital assets and their value. The actual time it take to reach an agreement depends upon these things as well as the extent of the issues involved. Even if the negotiations are amicable, splitting a jointly owned business or the children’s college savings will take much longer than a childless couple with only a home and two cars to split. If negotiations break down, the only option is to file a Complaint for Divorce. Once a divorce action is pending, the parties have the power of the court to force the other party to reveal otherwise hidden or undisclosed assets and to ultimately reach an agreement through the mechanisms of the court system (Early Settlement Panels, Economic Mediation, Custody/Parenting Time Mediation) or, ultimately, through a trial where a judge will make the final determination.
How will a legal separation affect my family?
Do I have to be legally separated from my spouse to file for divorce?
No. You can file for a Complaint for Divorce against your spouse at any time. However, you can use a separation as grounds for divorce if you intend to divorce for cause. If you live separately from your spouse for a period exceeding 18 months, you can use the separation as your legal reason for divorce. If you do not wish to wait for the 18 months to pass, you can file for divorce based upon irreconcilable differences (e.g. a no fault divorce) which does not have any requirements for time spent seperated.
How does a separation affect our income tax status?
The IRS considers you married for the entire following tax year if your divorce is not finalized by December 31st. This means if you are still married on December 31st, you are taxed as a married couple even if you divorce the first day of the new year. If you are married by IRS standards, you can only choose “married filing jointly” or “married filing separately” status. You cannot file as “single” or “head of household” in New Jersey unless you receive a full divorce from your spouse.
The Internal Revenue Service offers no deductions for court costs and legal fees from a divorce. However, the IRS does allow you to deduct any legal expenses that went towards tax advice or alimony. To take advantage of these credits, you must receive an itemized bill from your lawyer explicitly stating how many hours were spent on tax and alimony related consultation.
If you plan to write a separation agreement, the filing status and the number of dependents claimed should be outlined in your separation documents. These will not bind you to those filing options, but contradictory filings will almost certainly trigger an IRS audit, so it is advisable to coordinate these matters with your spouse during separation.
Can I date if I am separated from my spouse?
If you and your spouse agree to see other people while you are negotiating a separation agreement, you may do so. However, introducing another person into the equation may make an amicable resolution to your marital issues more difficult. You cannot remarry until you formally divorce your spouse, so if starting a life with a new partner is your goal, the only option in New Jersey is to file for divorce.
Do not take any unnecessary risks by relying entirely on what you read on this or any other blogs. Reach out to our office today to speak with NJ divorce lawyer Katherine Wagner.
Considerations for a Legal Separation
Here are some steps to take if you are planning a legal separation:
Your name should be taken of any leases or rental agreements for a property you no longer live in. If you fail to do this, you could be held responsible for your spouse’s bills.
Have your mail forward to your new address or post office box. This is a difficult time and you do not want to make your life more stressful by losing mail or bills.
If you are residing in a new location, you may want to investigate obtaining your own automobile insurance. If you have an accident and the insurance company finds out that you have been residing in a place not specified on the policy, they may deny coverage.
Keep a copy of all addresses, phone numbers and account information on mortgages, bank accounts, and credit accounts. Have your name removed from any accounts you are no longer responsible for. If you are financially separate, you don’t want to be saddled with your spouse’s debts.
Make copies of all income tax records for the past six years, at the least. State and Federal tax agencies are not a party to marital separation and divorce so any taxes owed will still be your responsibility. The sharing of any taxes owed or refunds due as a result of an audit of previously filed returns should be addressed in your settlement agreement.
You may be able to freeze joint bank and credit accounts but some institutions require the agreement of both parties. If you cannot get your spouse to agree to have your name removed, you may be responsible for obligations on credit cards and you may lose money if your spouse drains the bank accounts. An angry or panicked spouse might attempt to withdraw joint savings during separation. The last thing you want now is to wake up with your life savings suddenly missing and your joint credit cards maxed out.
It is not unusual for a divorce judgment to award separated spouses the personal property that is in their own possession. And, it is wise to remove as much, if not all, of our property from the residence if you are the one relocating. You do not want to see all of your personal property on the front yard being sold at a garage sale by your angry spouse. If there are important belongings that you leave with your spouse upon separation, you should specify in your separation agreement that those things come to you if you should divorce or sooner, as the case may be. Your grandmother’s wedding dress might not be worth much money, but the emotional value of family heirlooms and childhood memories only grows in a difficult time like a divorce and an angry spouse might hold these items hostage.
Are you still considering a legal separation?
For couples who have drifted apart, a separation agreement is a tool to part ways amicably without ending the marriage. If both parties act in good faith it can give both spouses an anchor point to negotiate this difficult time. It can also be a steppingstone to an uncontested divorce.
If you want to be financially separate from your spouse but religious or cultural convictions forbid a divorce, a board and bed separation (sometimes called a “limited divorce”) will separate you from your spouse but legally preserve the marriage.
But if you want to be permanently, legally and economically separate from your spouse, the law in New Jersey requires you to seek a full divorce.
For legal advice to guide you through this difficult time in your marriage, contact NJ divorce lawyer Katherine K. Wagner to discuss which option might be best for you.