Having helped thousands of New Jersey couples reach an amicable legal 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 the traditional legal separation process makes an informed decision before proceeding.
For information about divorce mediation, see our Comprehensive Guide to Divorce Mediation in New Jersey.
Comprehensive Guide to Legal Separation in New Jersey - Table of Contents
- What is Legal Separation?
- Does Legal Separation Exist in New Jersey?
- What is the Role of a Divorce Mediator in the Legal Separation Process?
- What is Divorce from Bed and Board?
- How Can I Make Legal Separation Easier On My Children?
- How Do You File For Legal Separation in NJ?
- What Is a Separation Agreement?
- 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?
- Which States Allow Legal Separation?
- What Is the Difference Between Legal Separation and Trial Separation?
- Can Spouses Live Together While Separated?
- How Does Legal Separation Affect Income Tax Status?
- Who Gets Custody of Children During Separation?
- Does Legal Separation Lead to Divorce?
- What if I Applied for Naturalization Based on Marriage, but I am now Separated?
- How is Child Support Handled During a Legal Separation?
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 the 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 a 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 the Role of a Divorce Mediator in the Legal Separation Process?
A divorce mediator is a neutral third party who facilitates communication between spouses during the legal separation process. They help identify and clarify issues, promote open dialogue and understanding, guide negotiations, and assist in drafting a fair, legally binding separation agreement. However, mediators do not provide legal advice or represent either party, maintaining neutrality throughout the process.
Learn more about Steven B. Menack’s credentials as a professional divorce mediator.
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.
How Can I Make Legal Separation Easier On My Children?
Separation 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 legal 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 separation easier on them is to keep it respectful.
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.
Read our Divorce Mediation Checklist for more info on this process.
What Is a Separation Agreement?
A separation agreement is a written contract between spouses. Once a separation agreement is finalized, the terms outlined in the document are legally binding and will result in a legal separation. Some of the issues that can be resolved within a separation agreement include custody and parenting time for children, child support, alimony, and division of property, among other things. Separation agreements are enticing for couples because it allows them to resolve many of the issues that would be dealt with during a divorce proceeding without needing to involve the courts.
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.
Which States Allow Legal Separation?
Nearly every state in the US allows and recognizes legal separation. There are only six states where legal separation is not an option:
What Is the Difference Between Legal Separation and Trial Separation?
Legal separation is a type of separation where a couple asks the court to approve their terms for living separately and apart. Spouses can specify these terms, such as how to manage finances and debts, child support and custody, and spousal maintenance, in a Separation Agreement for the court to approve. Typically, couples turn to legal separation when they do not want to immediately end their marriage with divorce but rather live apart and ensure their rights regarding money, property, children, and debts are protected. Legal separation gives spouses time to decide if they should reconcile, or proceed with a divorce.
A trial separation is more of an informal agreement between two spouses to separate and decide whether to continue their relationship. A trial separation is on the spouses’ terms without involving the court. Property acquired during a trial separation is still marital property, but couples can use a written Separation Agreement to document decisions about assets, children, and finances.
Can Spouses Live Together While Separated?
How Does Legal Separation Affect Income Tax Status?
It is always advisable to consult with your accountant or financial advisor to ensure that you are filing appropriately during your period of separation. You and your spouse should discuss how you will be filing your taxes each year to ensure consistency.
Who Gets Custody of Children During Separation?
When married parents separate, it’s essential to address child custody early and thoroughly. During separation, children and parents benefit from the stability and structure of a customized parenting plan. Separation parenting plans are temporary, lasting until parents choose to either reconcile or divorce. If you decide to divorce, the plan you create during separation lays the groundwork for the parenting plan you’ll eventually need for your final custody orders. Making an effective parenting plan is a big part of legal separation mediation.
Does Legal Separation Lead to Divorce?
Legal separation does not always lead to divorce, and in some cases is the best step for potentially mending issues within the relationship. However, legal separation is also sometimes a way to iron out important issues before opting for the finality of a divorce.
What if I Applied for Naturalization Based on Marriage, but I am now Separated?
If you, the applicant, are legally separated from your U.S. Citizen spouse, you may not be eligible for naturalization based on three years of residency in the United States, and your naturalization application may not be approved.
However, if your separation from your U.S. citizen spouse is informal, you may still be eligible for naturalization, which will be evaluated on a case-by-case basis. According to USCIS, if you are no longer living with your U.S. citizen spouse, it is considered as not living in a marital union. But, if you and your U.S. citizen spouse are still residing in the same household, an immigration officer must assess your eligibility for naturalization as a spouse of a U.S. citizen. If the officer determines there is “marital disunity,” your naturalization application may be denied.
How is Child Support Handled During a Legal Separation?
During a legal separation, child support is handled in the same way as it would be in a divorce. A court will determine the amount of child support to be paid based on factors such as the income of both parents and the needs of the child. The support may be ordered to be paid until the child reaches the age of majority or becomes self-sufficient. It is important to note that child support is considered a court-ordered obligation, and failure to pay can result in enforcement actions such as wage garnishment or a contempt of court citation. Creating a separation agreement with a mediator is a good way to get around the hassle of dealing with the court.