Legal Separation in New Jersey FAQs

When a marriage is failing, separation is sometimes a viable alternative to divorce. If you live in New Jersey, answers to some of the most frequently asked questions below will shed some light on what separation involves.

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Is There a Major Difference Between Divorce and Separation?

Definitely. An absolute divorce (divorce from the bond of matrimony) ends the marriage; separation doesn't. There are separation processes in New Jersey that are similar to an absolute divorce. But if you opt for them, at the end of the day you'll still be married.

Does New Jersey Law Provide for a Legal Separation?

New Jersey has a law that permits a legal separation for partners in a "civil union," which is a legislatively authorized status similar to marriage. However, there's no law that specifically references legal separation for married individuals. But although the exact terminology may not exist, it doesn't mean a married couple can't be legally separated.

New Jersey law provides for a "divorce from bed and board." (This is different than the absolute divorce referenced above.) This procedure deals with typical divorce issues, like dividing the couple's property, child support, and so on. But when the case is over, you're still married. Truth be told, this process is dated, and isn't used very often.

Today, the avenue of choice for most spouses seeking a legally viable separation in New Jersey is to negotiate a Separation Agreement (sometimes referred to as a Property Settlement Agreement).

What Is a Separation Agreement?

A separation agreement is a written contract between spouses. Once it's signed and notarized, its terms are legally binding on each spouse. (In effect, a legal separation.) The purpose of the agreement is to address and resolve all the issues that would arise in a standard divorce case. These would include topics such as custody and visitation (parenting time), child support, alimony (spousal support), and property division.

The allure of the agreement is that you can achieve your separation goals without involving the courts. This saves time (court actions tend to drag on) and money, particularly attorneys' fees, which typically mount quickly in court cases.

You also have the security of knowing that if your spouse violates the agreement, you can go to court to enforce it. If that occurs, a court might order your spouse to pay your legal fees. And a judge can hold that spouse in contempt, which could result in incarceration. So there's a significant incentive for spouses to adhere to the agreement's terms.

Also, if you ultimately decide to get divorced, a separation agreement usually contains a provision calling for it to be incorporated in your divorce judgment. This greatly facilitates concluding the divorce, because you've already resolved the major issues.

Note also that you and your spouse don't have to be living in separate residences for a separation agreement to be valid. In fact, there are instances of individuals living in the same house even after a divorce, usually for economic reasons.

What Is a Trial Separation?

A "trial separation" normally refers to an informal agreement between spouses to live separate and apart. Couples may opt for this when they're trying to assess their marital situation, but want to do it in a setting that reduces some of the tension that may accompany living together.

The law makes no formal provision for a trial separation, as such. It's a voluntary step, and it's up to the couple to set the ground rules. Spouses will have to determine how they plan to handle issues such as:

  • whom the children will reside with, and where and when the other parent will spend time with them
  • who pays the bills associated with the marriage, like a home mortgage or medical costs, and
  • a spouse's possible need for financial support while separated.

Be aware that, unlike with a legal separation agreement, in a trial separation you might not have immediate legal recourse if your spouse violates some of the terms you've agreed on. (However, courts will address certain issues, like custody and child support.)

Why Would Someone Choose Separation Over Divorce?

There are various reasons people opt for separation rather than divorce. Most often, economics is the controlling factor. The benefits of filing a joint tax return is one example. Another is the possibility of a spouse being entitled to social security based on the other spouse's benefits, if the couple stay married for ten years.

A classic reason was a spouse's ability to receive continued medical coverage through the other spouse's employer. But in today's health care environment, spouses should make appropriate inquiries to determine if this is still a viable option.

Another reason for choosing separation is that divorce may conflict with a spouse's religious beliefs. Also, although divorce is more socially accepted today than in the past, one or both spouses may still feel there's a stigma attached to it.

Finally, a couple may believe that a separation, rather than a divorce, would be an easier pill for a child to swallow. As well-meaning as this reasoning might be, it could be a mistake. This is especially true if the parents also decide to continue to reside together. The tension and anxiety that often permeate this arrangement could negatively impact the children, sometimes even more so than the adults. Obviously, how this would play out will depend on the circumstances of each case. But before choosing separation solely for the sake of the children, carefully consider the possible downside.

Do I Need an Attorney for a Separation?

The short answer is no, but that comes with a caveat. Like divorce, the issues that arise in separation are complex. Attempting to address them without the benefit of input from someone who is thoroughly versed in family law could lead to major problems down the road.

Even if you and your spouse use a trained matrimonial mediator to help you reach a meeting of the minds and prepare a written separation agreement, that mediator is likely going to tell both of you to consult with separate attorneys to review the agreement. So, for your protection, consider retaining a knowledgeable and reputable local divorce lawyer.

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