Legal Separation Vs Divorce in New Jersey

Is there a difference between divorce and separation in New Jersey?

What is a separation agreement in New Jersey?

A separation agreement may be referred to as a property settlement agreement in New Jersey.

However, such contracts address many more issues than simply the division of marital property, such as custody and visitation (parenting time), child support, and alimony (spousal support). All of these issues would normally require resolution in a standard divorce case.

If prepared correctly, signed, and notarized, a separation agreement is a legally binding contract between spouses that can be enforced by the court.

This can be beneficial for married couples who want to separate because it does not need to directly involve the New Jersey courts. Couples may prepare and sign the agreement with only minimal intervention from qualified lawyers. This can save both time and money while also keeping you in control of the major decisions that govern your separation.

The final document—the separation agreement—may be considered a type of “legal separation” for married couples in New Jersey and also provides a valuable “fallback” in that if either spouse violates the agreement, the court can enforce it.

Often, couples who sign separation agreements ultimately decide to get divorced. The agreement can then be incorporated in the divorce judgment. The issues that generally delay divorces are those that a separation agreement addresses so the preparation of an agreement can ensure that those delays won’t hold up your divorce if you decide to go ahead at a later date.

A separation agreement can be a useful document regardless of whether you decide to live apart or not. Sometimes, couples prefer to live together but consider themselves separated—and some divorced couples even continue to live together for a variety of reasons.

What is a trial separation?

A trial separation is an informal arrangement between spouses to live separate and apart—usually to provide the time and space necessary to assess their relationship and see if they want to make the separation more permanent or seek a divorce.

Sometimes, it can be difficult to make clear-headed decisions when living under the same roof. A trial separation may make it easier though it is strictly voluntary and there are no legal obligations or legal recognition of the status in New Jersey.

Several practical issues arise with a trial separation, including care for the children, parenting time, who pays the bills, and whether temporary spousal support is required. If any issues concerning the children are not properly addressed, the court may intervene but otherwise, a trial separation provides no legal protections for either spouse.

Why choose separation over divorce in New Jersey?

In some cases, divorce is the least desirable option when a marriage breaks down. There could be several reasons for this:

• Religious reasons that forbid or strongly discourage divorce.
• Healthcare reasons, such as the right to remain on a family health insurance policy or entitlement to a spouse’s employer policy.
• Other financial incentives, e.g., filing a joint tax return or social security entitlement for remaining married for 10 years.
• Better for the children: it may or may not be better for families to “stay together through thick and thin”. Children may benefit from their parents remaining together or end up suffering more by living in a toxic environment.
• A perceived social stigma associated with divorce (which can still apply in some more traditional communities).

No two New Jersey marriages are the same and your personal views and circumstances will usually dictate whether separation is preferable over divorce.

Do I need an attorney for separation?

Relationships, marriages, civil unions, separations, and so on are complex. There is no legal requirement to hire an attorney to help you work through whatever situation you find yourself in but the separation process may be smoother with some legal assistance.

The potential pitfalls are many as important decisions must be made that can greatly impact the rest of your life. Being able to consult with an attorney experienced in such matters can help you understand your rights and responsibilities and ensure that no rash decisions are made that will negatively affect your future.

Many divorces end up in mediation before a separation agreement can be formulated, with a trained mediator assisting couples in negotiating the terms of their separation. The mediator, however, cannot provide legal advice so even in these situations, guidance from an attorney well-versed in divorce law can be a major benefit.

You certainly should not sign a separation agreement without first seeking independent legal advice.

If you need assistance with a divorce in New Jersey, contact the Law Office of Steven M. Cytryn, LLC for an initial consultation.