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, spouses 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 and health insurance for the family
- household expenses
- mortgage and property taxes
- payment for car leases or car payments
- credit card bills, and
- tax returns and current and back taxes that may be due.
Do you need to go to court to create a separation agreement?
No. You don't have to go to court to create a separation agreement. Either spouse can draft his or her own separation agreement. Alternatively, spouses can work on a separation agreement together or ask a neutral mediator to help them prepare it. If the separation involves complex financial or custody issues, it would be wise to have each spouse ask a separate attorney to review it on his or her behalf - the are many affordable family lawyers in the Garden State.
What arguments can a person use to set aside a separation agreement?
A spouse that wants to set aside a separation agreement 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 (one of the spouses was coerced into accepting or signing the agreement).
Can a separation agreement be set aside because of a mistake about assets?
Another ground to set aside a separation agreement is based on the concept of "mutual mistake of fact" - this means if a spouse can prove that the separation was based on erroneous information, or on a mistaken assumption(s), then there may be grounds to set aside the separation agreement. For examples, if both spouses rely on real estate appraisals that turn out to be incorrect, this may provide a mistake of fact necessary to void their separation agreement.
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 their assets, determines support awards, and divides debts. 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 very long-term marriages, where the spouses have no intention of remarriage.
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.
If you have questions about legal separation or divorce in New Jersey, you should contact a local family law attorney for advice.