Having helped thousands of New Jersey couples reach an amicable divorce or separation agreement through mediation, we have heard many different questions about how this process works. This guide is designed to help couples who are considering mediation as an alternative to traditional divorce or legal separation make an informed decision before proceeding.
Comprehensive Guide to Divorce Mediation and Legal Separation in New Jersey - Table of Contents
- What are Grounds for Divorce in NJ?
- What is Divorce Mediation?
- What is Legal Separation?
- Does Legal Separation Exist in New Jersey?
- What is Divorce from Bed and Board?
- Do You Have to Go Through Mediation Before Divorce?
- How Do I Prepare for Divorce Mediation?
- How Long Does Divorce Mediation Take?
- How Much Does Divorce Mediation Cost?
- Is Divorce Mediation Less Expensive Than Going to Court?
- Who Pays for Divorce Mediation Costs in New Jersey?
- Do I Need a Lawyer for Divorce Mediation?
- Does Divorce Mediation Still Require Us to Appear in Court?
- Can I Bring Someone to Mediation?
- What is Discussed in Divorce Mediation?
- Can My Spouse Cancel My Health Insurance Before Divorce?
- Can I Keep My Spouse on My Health Insurance After Divorce?
- What Happens to Pets in Divorce?
- Is Divorce Mediation Legally Binding?
- Can Divorce Mediation be Changed?
- What Happens If We Can’t Agree on Anything During Mediation?
- We Don't Get Along Well, Is Mediation Still Possible?
- How do Divorce Court Documents Get Filed?
- What if My Case is Too Complicated to be Handled Through Mediation?
- What Is the Difference Between Court-Ordered Mediation and Private Mediation?
- What Should I Expect During My First Divorce Mediation Session?
- Will COVID-19 Affect Our Child Custody Arrangements in NJ?
- How Can I Make Divorce or Separation Easier On My Children?
- How Can Mediation Protect My Children During a Divorce?
- Does Divorce Mediation Require a Retainer?
- If We Already Started Divorce Litigation Can We Still Mediate?
- Can Other Persons Attend or Participate in the Divorce Mediation Session?
- How Do You File For Legal Separation in NJ?
- Can You Date While Separated From Your Spouse?
- Why Would You Get a Legal Separation Instead of a Divorce?
- How Many Years Do You Have to be Separated to be Legally Divorced?
What are Grounds for Divorce in NJ?
- A “fault” divorce occurs when one spouse blames the divorce on the actions of the other spouse.
- One example of grounds for a fault divorce is “extreme cruelty,” where one spouse was abusive or violent towards the other.
- Another example of a fault divorce complaint is “desertion,” meaning one spouse left the other spouse at least one continuous year ago.
- In a “no-fault” divorce, both spouses agree that the marriage is not ending because of either of their specific actions. In other words, neither spouse is accusing the other of ruining the marriage.
- One of the no-fault grounds for divorce is “separation,” where the couple has been living apart for at least 18 months before the complaint for whatever reason.
- The other no-fault grounds for divorce occurs when the couple has come to “irreconcilable differences,” meaning they cannot get along with each other anymore and there is no reasonable chance of them making up.
What is Divorce Mediation?
Divorce mediation is an alternative to the traditional New Jersey court divorce process that involves both parties coming together to decide on all the major issues of the divorce with a neutral third party known as a divorce mediator. The divorce mediator does not make decisions for the couple, but helps guide the couple through the process in a positive, constructive way. While it will not work for every situation, mediation is a less contentious, more cooperative option for couples who are willing to participate and come to a decision together. Many couples choose divorce mediation because it is a quicker, less costly, more amicable process than going through the courts. The goal of divorce mediation is to arrive at a mutually satisfying, legally binding agreement that takes into consideration the needs and desires of both parties.
What is Legal Separation?
Legal separation is an alternative to divorce which allows a couple to separate while still remaining legally married. This is a preferable option for couples who do not see divorce as an option for moral, religious, or financial reasons, or couples that believe they can still reconcile. Legal separation is easily reversible, so it is not as permanent as a divorce, but it still gives the couple a chance to decide on major issues such as division of assets and child custody while deciding if divorce is right for them. Couples seeking a legal separation in New Jersey can participate in separation mediation to agree to the terms of separation just as they would for a divorce.
Does Legal Separation Exist in New Jersey?
The term “Legal Separation” is not used in New Jersey state law as it is in other states. This creates some confusion for New Jersey couples as to whether or not separation is a valid option. Even though that exact terminology is not used in this state, married couples who are civil and agreeable are still able to enter into a legally binding separation agreement.
What is Divorce from Bed and Board?
Also called a limited divorce, divorce from bed and board is the formal name for the court process of legal separation in New Jersey. It is a bit of a misnomer as the couple is still legally married after this separation process.
Do You Have to Go Through Mediation Before Divorce?
No, mediation is not required before a couple can divorce. It is a voluntary process that couples agree to go through together. Usually these couples are preparing for a no-fault divorce, but any couple that is willing to cooperate to reach the best possible agreement is a candidate for mediation.
How Do I Prepare for Divorce Mediation?
There are several steps you can take to make sure you are prepared for the first mediation session, including:
- Pick a Qualified, Experienced Mediator. Do your research and select a mediator who has the proper experience and qualifications. A good mediator will create a stress-free environment and assist both parties in reaching a fair and reasonable agreement to all the issues in their case.
- Get Organized. It’s important to come into mediation with a complete list of all assets and debts you have, both financial and otherwise. This can include bank accounts, mortgages, vehicles, credit card balances, valuable property, retirement funds, etc. The mediator can only help you if they have the full picture and understand what needs to be decided on.
- Set Goals. Think about what you actually want at the end of the divorce and go into divorce mediation with a clear set of goals. Decide what is important to you and what you are willing to compromise on. For example, if you have children it is important to think about what custody situation is best for your family. If you have any questions or concerns about how the divorce will work, mediation is the time to raise them.
- Come Ready to Cooperate. Divorce mediation is designed to be a peaceful, non-adversarial alternative to litigation, so it’s important to go into it ready to be respectful and participate in a productive discussion. Mediation is not the time or place for an argument.
How Long Does Divorce Mediation Take?
No two divorces are exactly the same, so divorce mediation can vary in length based on what needs to be decided and the couples’ level of agreement. However, even a longer divorce mediation will take significantly less time than a traditional divorce through litigation. The divorce court process can take well over a year, whereas mediation can be completed in as little as 2-3 months.
Factors that can impact the length of the divorce mediation process include but are not limited to:
- Does the couple have children?
- Detailed parenting time schedule (normal visitation, holidays)
- Alimony and child support
- Educational responsibilities (private school, college)
- Life insurance for the spouse paying support in the event of death
- Does the couple own a house, property, or vacation property together?
- Will the assets be sold (how are things divided)
- Who keeps what
- Life Insurance
- Retirement Accounts & Division of Assets
How Much Does Divorce Mediation Cost?
While the cost of mediation varies depending on the circumstances of the divorce, divorce mediation is generally a much less costly option than a traditional court divorce.
Price factors in divorce mediation include:
- The number of sessions required.
- The thoroughness of the mediator’s process.
- Whether any conflicts arise.
- The nature of the issues that need to be resolved.
Is Divorce Mediation Less Expensive Than Going to Court?
Divorce mediation is almost always a cheaper option than going to court for divorce. There are several reasons for this, including:
- Mediation takes significantly less time than litigation.
- Some mediators do not charge retainer fees.
- Mediation involves only one mediator instead of two attorneys.
Who Pays for Divorce Mediation Costs in New Jersey?
It is up to the two parties involved to decide who will pay for private divorce mediation sessions. Some couples split it evenly, and others split it proportionally based on their respective income. In some cases, one party will agree to pay the cost of mediation in order to help come to an agreement with their spouse. However, this can sometimes lead to conflicts, as the spouse paying for the mediation will be motivated to resolve things as quickly as possible, while the other spouse will have nothing to lose by prolonging the process.
Do I Need a Lawyer for Divorce Mediation?
Lawyers are not required, or recommended, to be present or involved in divorce mediation sessions. The goal of mediation is for both spouses to work together with the mediator to make decisions for themselves, so involving lawyers can be counterproductive to that process. Situations can vary, and if one spouse insists on bringing a lawyer, the other spouse would be wise to do the same. However, if divorce mediation is meant to be a quicker, cheaper, and more amicable route than traditional divorce, involving attorneys can defeat the purpose.
Does Divorce Mediation Still Require Us to Appear in Court?
Assuming divorce mediation goes smoothly and there are no major disagreements, you can get a divorce with the help of a mediator without ever needing to set foot in a courtroom. In states like New Jersey that don’t require a court appearance, you’ll simply have to submit the required documentation and forms. Your divorce mediator can help you with these documents which are typically available on the court’s website.
Can I Bring Someone to Mediation?
While divorce mediation is designed to be between both spouses and the mediator, one spouse may bring someone with them if the mediator and the other spouse agrees. The other spouse would have the opportunity to bring someone as well. It is important to make sure that having these other people involved will not slow down or derail the process.
What is Discussed in Divorce Mediation?
In divorce mediation, couples work together with a mediator to come to a legally binding, mutually satisfying agreement resolving all of the issues that would need to be decided on in a typical divorce, including but not limited to:
Can My Spouse Cancel My Health Insurance Before Divorce?
No, it is not possible for one spouse to kick the other spouse off of their health insurance plan before the divorce is finalized. In the eyes of the law, even if the couple is separated, there is no official change in circumstances until there is an official divorce decree, so there is no grounds to remove the spouse until then.
Can I Keep My Spouse on My Health Insurance After Divorce?
No, only spouses and dependent children are allowed to be included in health insurance coverage. Ex-spouses are not included, so once the divorce is finalized you are obligated to remove your spouse from your insurance plan. If the couple wishes to continue sharing health insurance coverage, legal separation would be a better option than divorce.
What Happens to Pets in Divorce?
Although many married couples think of their pets as children, in the eyes of the law they are considered property and subject to ownership. There are no legal guidelines for custody or visitation where pets are concerned. Whereas child custody and visitation arrangements are decided with the child’s best interest as the main focus, pets fall into the agreements for division of property and which spouse has the better claim to ownership. This is another situation where mediation is a better alternative than litigation to come to an agreement that works for both spouses.
Is Divorce Mediation Legally Binding?
Yes. Although the mediator is not a judge and has no legal authority to make decisions for the couple, the finalized divorce agreement that the couple makes together will be just as legally binding as one ordered by a judge after a trial or negotiated by lawyers during litigation, and cannot be broken by either party for any reason.
Can Divorce Mediation be Changed?
If one or both spouses’ circumstances change after a divorce has been finalized, they may want to modify the terms of their agreement. Since the divorce agreement reached through mediation is a legally binding document, it will need to be changed in court by a judge. If both spouses agree to the change, this can be a straightforward process. Post divorce mediation is an option for couples who want to revisit the decisions made in their original divorce.
What Happens If We Can’t Agree on Anything During Mediation?
If the spouses are unable to reach an agreement on one or many issues during mediation, they will most likely have to take their issue to court to be ruled on by a judge. For this reason, couples who want to have authority over their own decisions in divorce will try to make mediation work if possible.
We Don't Get Along Well, Is Mediation Still Possible?
Many couples who choose mediation are amicable and work well within the mediation process. However, part of every qualified mediator’s training is in assisting couples who have high emotions but who still would like to work things out peacefully. People do calm down and become effective in mediation when they see that the process can work without adding to the high emotional and financial cost of divorce.
How do Divorce Court Documents Get Filed?
If your divorce mediator is also an attorney, they can assist you in filing any papers that need to be submitted to the court. Some of the things they can help with include starting the dissolution of marriage action, preparing and filing the necessary disclosure documents, and preparing the agreement, judgment, and final papers to be filed with the court.
What if My Case is Too Complicated to be Handled Through Mediation?
There is no divorce case that is too complicated to be handled by a mediator. Most mediators are lawyers and will know how messy divorce cases can be and are more than up to the task of resolving everything amicably. Frequently the parties in mediation consult with outside experts such as accountants, appraisers, financial planners, and attorneys during the process, and a skilled mediator will be able to help with all of this.
What Is the Difference Between Court-Ordered Mediation and Private Mediation?
Court-Ordered Mediation and Private Mediation will largely be the same process, but there is one main difference. Court-ordered mediation is a mandatory mediation session ordered by a judge or court in a divorce proceeding, whereas private mediation is carried out when both spouses agree to participate. If a judge orders mediation in your case and you don’t attend, you may face penalties, like contempt of court.
Couples who participate in private mediation will have the opportunity to discuss child custody, visitation, support, and property division issues and anything presented in the session will remain confidential and can’t be used by either spouse in court if you can’t reach an agreement.
What Should I Expect During My First Divorce Mediation Session?
Most divorce mediation will usually take from one to five sessions of a few hours each, depending on the circumstances. In the first session the mediator will explain what you can expect from the process. You may be asked to sign a confidentiality agreement. You may be expected to fill out additional paperwork as well. The first meeting with a divorce mediator is often spent collecting background information and facts. Once the mediator has covered the basics, each person will get to present his or her view of the issues. The mediator may ask questions to clarify the situation or to get more information.
Will COVID-19 Affect Our Child Custody Arrangements in NJ?
COVID-19 has drastically altered all aspects of life for New Jersey residents in a short time, and it is leading to many unusual scenarios divorced couples are not sure how to navigate. One area of concern is how social distancing and stay at home orders will impact child custody and parenting time arrangements for divorced parents. Existing child custody and parenting time plans are still in effect during Covid-19, and the recent stay at home orders and social distancing will not change that. If a parent contracts the virus and needs to be hospitalized, visits will likely need to be postponed.
How Can I Make Divorce or Separation Easier On My Children?
Divorce is a challenging and emotionally difficult situation for everyone involved, especially children. Their whole family dynamic is changing and it could be difficult for them to cope with the divorce. There are a few ways you can make the separation easier on them, like keeping the grievances off of social media, not confiding in your children about the divorce, and avoiding destructive litigation with divorce or separation mediation. It’s important to keep your children in the loop without confiding in them too much or badmouthing the other parent. The only way to make the divorce easier on them is to keep it respectful.
How Can Mediation Protect My Children During a Divorce?
Divorce is hard, and getting a divorce when you have kids is even harder. There are many ways you can shield your children from any of the specifics of your divorce. If you are in the midst of a contentious divorce, keep these tips in mind when it comes to doing what’s best for your children. It’s important to keep the specifics of your divorce off of social media, avoid any badmouthing of your spouse in front of your children, and do not confide in your kids. Children are not emotionally equipped to handle the specifics of your divorce, so it is best to keep the details hidden from them. Choosing mediation over a traditional divorce can help you protect your children because it is not as long and drawn out which tends to be expensive and take up a lot of your time.
Does Divorce Mediation Require a Retainer?
Unlike traditional divorce cases where attorneys will ask for money up front as a retainer, divorce mediation does not require a retainer. For divorce mediation, you pay at the end of each session, so you know exactly what you are paying for. If you have any questions about how much each session will cost, don’t hesitate to reach out to Steven B. Menack beforehand.
If We Already Started Divorce Litigation Can We Still Mediate?
Absolutely. The court in most states encourages divorcing litigants to mediate. But judges are required to follow time limits so you should consult with your divorce attorneys about how the schedule will affect mediation.
Can Other Persons Attend or Participate in the Divorce Mediation Session?
Assuming both parties agree, other professionals can attend mediation sessions, including attorneys, accountants, child psychologists, etc. Parties may also bring a relative or friend for moral support but only under agreed upon limitations to the extent of their participation. Children may also be present if both parents agree, although it is highly recommended that children don’t participate in the first session.
How Do You File For Legal Separation in NJ?
Legal separations are not officially outlined by any law in New Jersey, and since separating from your spouse does not require a court to be involved, an NJ separation agreement can be reached as soon as both parties agree on terms. Most separation agreements can be settled within only a few months, but will ultimately depend on both sides being on the same page in every aspect of the separation. Every part of the separation agreement must be agreed upon before it can be considered valid including custody of children, payment of obligations such as child support and alimony, and division of marital assets.
If negotiations between spouses break down during the legal separation process, filing a complaint for divorce will likely be your only option. Once a divorce action is made, the court will become involved and will ultimately reach decisions that cannot be decided on by both parties.
Can You Date While Separated From Your Spouse?
During the separation, you and your spouse can agree on whether or not you want to date other people and include it in the separation agreement. However, you should be aware that introducing another person into your life can cause problems when trying to resolve marital issues. For example, if you have received a separation agreement, you are still married to your current spouse and cannot remarry until you have gone through divorce proceedings. If you plan to remarry in the future, your only option is to file for divorce.
If you think a separation agreement will lead to a divorce down the line, it is best to avoid getting into a new relationship until the divorce is final or you are sure that your current spouse is on the same page on every aspect of the divorce.
Why Would You Get a Legal Separation Instead of a Divorce?
The key difference between divorce and legal separation is that in a divorce the marriage has ended, while in a separation you are still legally considered married. This has several benefits that divorce cannot offer such as:
- Avoiding the Stress of Divorce – Divorce can be a very taxing process that can drag out for a long time. Legal separation can be a much more moderate affair with less stress and time commitment.
- Religious Reasons – One or both of the parties involved may object to divorce on religious or moral grounds.
- Tax Benefits – Both you and your spouse can still take advantage of marital tax benefits.
- Healthcare and Insurance Benefits – One spouse can remain eligible for the healthcare and insurance benefits of the other. However, sometimes there are clauses that disallow legally separated couples from gaining these benefits, so make sure to check your policy.
- Government Benefits – If one spouse will soon become eligible for their spouse’s government benefits or Social Security, it can be wise to pursue legal separation rather than divorce.
- Leaving the Door Open to Reconciliation – If you feel your situation may improve with some time apart and that future reconciliation is an option you want to keep on the table, legal separation allows that.
- Less Costly – Divorce can get expensive. A legal separation is generally a much cheaper option.
How Many Years Do You Have to be Separated to be Legally Divorced?
New Jersey does not have a process of legal separation like New York does. Couples do not need a court order to begin living separately, and while they are free to draft and sign a separation agreement, it is not a necessary step.
Not cohabitating with your spouse for longer than 18 months can provide a cause of action – that is, the legal reason for filing a divorce. However, you need not wait this amount of time in New Jersey. A divorce for irreconcilable differences only requires that your marital relationship has been broken for at least six months, and there is no reasonable possibility of reconciling with your spouse.