If you are considering divorce but are having trouble deciding whether or not it is right for you, you may be interested in knowing what other options are available. In some states, couples can obtain a “legal separation” either prior to or instead of a divorce. New Jersey doesn’t have a legal separation process for married couples, but it does have a similar process, called “divorce from bed and board.” This is sometimes also called “limited divorce,” as distinguished from complete divorce, or “divorce from the bonds of matrimony.” In addition, New Jersey also has a procedure called “legal separation” for civil union partners, and this is virtually identical to divorce from bed and board.
Divorce from bed and board developed during a time when divorce carried a considerable degree of social stigma. While few people today make judgments on the basis of a person’s marital status, there are still reasons some people may wish to pursue a legal process of separation, rather than a final divorce. Some people object to divorce for religious reasons: others don’t really want to get divorced but feel a need to separate themselves from their spouse financially for one reason or another.
New Jersey married couples can get a divorce from bed and board on the same grounds as a full divorce; however, regardless of the grounds, both parties must consent to the procedure. Couples who go through divorce from bed and board remain technically married. Neither spouse can remarry without taking steps to convert the divorce from bed and board into a final judgment of absolute divorce. While conversion is usually a simple procedure, it does require filing additional paperwork and paying additional court fees. Spouses who reconcile following divorce from bed and board can also apply to have the judgment revoked or suspended. This is not an option after a complete divorce; a couple would have to remarry instead.
Just as in a complete divorce, a couple can decide how to divide their marital property and debts and enter into a settlement agreement. If the spouses haven’t reached agreement, the court will divide marital property and debts according to equitable distribution rules and may also award alimony if appropriate.
One of the main reasons couples today consider divorce from bed and board more frequently than in the recent past is because this process often permits a dependent spouse to continue health insurance coverage provided by a supporting spouse’s employer. Health insurance has become increasingly expensive, and a dependent spouse often has difficulty finding affordable insurance following divorce. If the employed spouse works for a business with at least 20 employees, one option may be to continue the same coverage under COBRA (The Consolidated Omnibus Budget Reconciliation Act); however COBRA coverage is generally only available for a maximum of 36 months and it is often expensive, as the former spouse’s employer will no longer cover any portion of the premium. Taking out an individual policy can be even more expensive.
Because couples are technically still married after a divorce from bed and board, the dependent spouse can usually continue coverage under the employed spouse’s policy. In some cases, it may make sense for a couple to agree to a divorce from bed and board for a limited period of time to allow the dependent spouse a chance to find a job with health benefits, or to reach the age of eligibility for Medicare. Before assuming that you would be able to take advantage of this option, however, be sure to check the terms of your health insurance policy. If your policy states that “legal separation” is a qualifying event requiring removal of a spouse from coverage, you will need to consult with an attorney regarding the potential effect of the divorce from bed and board.
While divorce from bed and board can be an effective way for spouses to achieve economic separation, there may be some aspects of the separation that are not as complete as with a full divorce. A couple cannot continue to accrue marital property while the divorce from bed and board is in effect. They can choose to continue joint ownership of marital property previously accrued, but the divorce from bed and board automatically converts any property held as tenants by the entirety to property held as tenants in common. Survivor benefits under many pension plans, and certain federal benefits such as spousal social security retirement benefits, may be preserved during the divorce from bed and board. Other rights, however, including intestate rights (the right of a spouse to inherit property if the other spouse dies without a will) and the right to claim an elective share against a deceased spouse’s estate, are not preserved.
Unless you have a specific reason, such as preservation of insurance coverage, for obtaining a divorce from bed and board, you may be better off entering into a written settlement agreement prior to making a final decision to divorce. This is a way to protect children and financial assets without a formal legal process. Courts generally uphold such agreements provided that they are in writing, signed by both parties, and notarized.
If you are considering divorce from bed and board, be sure to consult with a knowledgeable attorney regarding how the process will affect your individual situation. Because it isn’t as common as complete divorce, not all family law attorneys are familiar with the various ways that it can impact property rights. You may also need to consult with an accountant regarding the effects of the divorce from bed and board on your income taxes and how you should file your tax returns.