Here are some common questions and answers regarding separation agreements in New Jersey.
What is a separation agreement?
A separation agreement is a contract that outlines the terms of the couple’s separation, and it generally resolves all issues relating to child custody, child support, alimony, division of property, and apportionment of debt. To be valid, a separation agreement must be in writing, signed by both parties, and notarized. A legal separation is normally the first step in a divorce case. At the time of the legal separation, the debts and property are usually “frozen” and made separate for each spouse.
What terms should a separation agreement contain?
A separation agreement is a contract between a husband and wife.
Many times the parties believe that they should separate before they plunge
into a divorce. A separation agreement should address the following issues: child
support, spousal support, day care expenses, miscellaneous medical bills, health
insurance for the family, mortgage and the household bills, property taxes, payment
for car leases or car payments, credit card bills, tax returns, and back taxes
that may be due.
Do you need to go to court to have a separation agreement?
You do not have to go to court to have a separation agreement. A person can draft his/her own separation agreement. However, there are many affordable family lawyers in the Garden State.
What arguments can a person use to set aside a separation agreement?
A spouse can argue:
- the separation agreement is not a fair distribution of the marital assets.
- the separation agreement is unconscionable (one which no fair or honest person would accept)
- the separation agreement was made under duress (the spouse was coerced).
Can a separation agreement be set aside because of mistakes about assets?
Another ground to set aside a separation agreement is based on the concept of mutual mistake of fact. Thus, if a spouse can prove that the separation was based on erroneous information, or on mistaken assumption(s), then there may be grounds to set aside a separation agreement. A common scenario where a mistake could void a separation agreement is when the parties rely on house appraisals.
What’s the difference between Bed and Board and Legal Separation?
New Jersey has an outdated legal proceeding called a “divorce from bed and board” that is similar to a legal separation. In a “divorce from bed and board,” the parties are economically divorced but are still legally married. The parties receive a judgment that equitably distributes the assets, support awards are issued, and debts are apportioned. In these types of cases alimony is usually not awarded.
Advantages and Disadvantages of Bed and Board. The major benefit of having a divorce from bed and board is that a separated spouse can still receive insurance benefits from the other spouse because there is not a complete divorce. Moreover, this type of legal proceeding is really only applicable to a very long-term marriage, where neither person has any intentions to re-marry. The drawback of a divorce from bed and board is that, even though the spouses are economically divorced, the parties are still technically married. Therefore, it may be impossible for the spouses to date other people. Moreover, many spouses still may attempt to exert control over the other spouse because they are still technically married.
