A frequent question to Divorce Lawyers is whether a party can simply obtain a “Legal Separation”, rather than pursuing a Divorce. The simple answer to the question is “No, New Jersey’s Matrimonial Law does not have a cause of action for Legal Separation”. In other words, a party is not required to file papers with the Court to confirm separation or for permission to separate.
Although New Jersey does have an action known as “Separate Maintenance”, this action is strictly for support and it does not modify the status of the parties’ marriage. In a Separate Maintenance action, the Court is also not authorized to rule upon property distribution issues.
Nevertheless, although New Jersey does not recognize an action for “Legal Separation”, a separation will likely result in legal consequences which could significantly affect the rights and obligations of the parties. For instance, upon separation, issues of custody and parenting time will need to be discussed and resolved by way of agreement or Court Order. Similarly, issues of spousal support and child support will arise upon the parties’ separation. Although issues of custody and parenting time, as well as child support and interim spousal support, can be resolved or litigated without the necessity of a divorce action (for example, parties can file a Complaint for custody and/or support), one problem with choosing this approach is that the Court is without authority to consider property and debt distribution issues in these types of actions. Another problem with delaying the filing of a Complaint for Divorce is that under New Jersey Law, the acquisition of assets and debt eligible for distribution does not stop until an agreement is reached or a Complaint for Divorce is filed. A prolonged separation, without a divorce, could lead to the unexpected result that property (whether real estate, retirement accounts or other financial assets) could continue to be subject to division even though the parties no longer reside together. Also, debt incurred by the spouse could also later be raised as a marital debt, subject to equitable distribution.
A common approach for those who are not ready for the commencement of divorce proceedings, but are desirous of a separation, is prompt commencement of negotiations and development of a Separation Agreement, which establishes temporary support, custody and parenting time and perhaps, property distribution arrangements. At the very least, such an agreement could provide that any assets (or debt) accumulated by a party following the separation shall remain the property (or debt) of the acquiring party.
Regardless of whether a Separation Agreement is possible, it is clear that the decision to separate should not be made in haste and whether a party is considering separation, or if the party’s spouse is contemplating separation, advance consultation with an experienced matrimonial lawyer is advisable. While each case is different, and the safety, stresses and urgencies in any particular case could require an immediate temporary separation before counsel can be contacted, it is preferable that consultation with an attorney occur as soon as possible prior to a change in residence, whether permanent or temporary.
During a consultation with counsel, issues of the timing of the separation, as well as the consequences of the separation must be addressed and clearly understood by any party facing these circumstances.
Barry Chatzinoff, Esquire has been representing South Jersey residents in Matrimonial and Family Law matters for more than 30 years.