Whether you and your partner decide to move forward with a separation agreement or a divorce settlement, it’s essential to have someone on your side to ensure that any agreement made is fair for both parties.
When the topic of divorce comes up for married couples, making decisions about logical next steps can be a source of stress.
For some, the decision to divorce may be clear—but for others, that decision may not be. Do you stay together and work it out? Do you proceed toward ending your marriage? Or is there a middle ground, an option that allows you to consider your options without the pressure of a final decision?
One option that couples may consider is legal separation. But while legal separation can be a useful approach, there are important considerations to be mindful of—particularly for couples in New Jersey.
What is a legal separation?
Generally speaking, legal separation involves negotiating and defining the rights and responsibilities of both parties within the marriage during the period of separation, and most of the time, within a formal agreement. Note that “legal separation” is different from what is referred to as a “trial separation.” Unlike legal separations, trial separations are voluntary and informal, meaning that you do not need to file anything.
In the state of New Jersey, however, couples do not have the statutory option to pursue formalized legal separations. This means that while they may choose an informal trial separation, there are limited legal options between divorce and staying married.
Steps couples in New Jersey can take instead of legal separation
The absence of a formalized legal separation process may seem limiting for married couples trying to come to an equitable arrangement during this time. However, there are two options that they may consider in lieu of legal separation:
- Start your divorce settlement
For couples who have decided that they’d ultimately like to pursue a divorce but don’t yet wish to formalize their decision, starting their divorce settlement can help move things forward without the need to finalize decisions yet.
This step provides some of the benefits of a legal separation, including articulating your wishes for your divorce, the rights and responsibilities of each party, the division of assets, child custody and support, and more.
Starting your divorce settlement allows you to be proactive and address divorce-related concerns before a pressing deadline or stressful decision is upon you. Even if you think you and your soon-to-be ex-spouse are on the same page when drafting your divorce settlement, you can avoid common pitfalls like miscommunications or blind spots that could cause future complications by working with an experienced attorney.
- File for a non-dissolution proceeding
On the other hand, if you are unsure about divorce but know that you want to live separately from your spouse, you may consider non-dissolution proceedings.
Non-dissolution proceedings usually pertain to issues like child custody and child support, but can also be helpful for parties who wish to separate but don’t want to lose their partner’s health insurance or will require financial support while living apart. These proceedings are often county specific, and if you’re married, pursuing a legal separation, and don’t have children, filing can be tricky.
When considering whether to file a non-dissolution proceeding, it’s crucial to have guidance and input from a legal professional. That way, you can be sure that you’re creating a binding agreement, avoiding unforeseen pitfalls, and making sure you understand the specific requirements of the court.
Thinking about separation or divorce? Consider these factors.
Deciding to end a marriage or partnership can be an emotional time in anyone’s life. When choosing to pursue a separation or divorce, you’ll want to consider your current situation and the impact of your decision on your life both now and in the future.
Here are a few things to consider before making a decision:
- Is your divorce or separation likely to be contested?
- Do you and your spouse have children? If so, will you require a custody agreement?
- Do you need to keep your medical insurance? Will you lose additional benefits?
- Will going through a divorce jeopardize your immigration status?
- How will you divide your assets?
If you’re unsure of how to proceed, seek out an experienced legal professional who can help you navigate the complexities of separation agreements and divorce settlements.
The benefits of a separation
Separation can benefit both parties in a marriage if they’re not yet sure they wish to divorce. Even though “separated” is not an official marital status in New Jersey, couples may create legal agreements to clarify their rights and responsibilities during a separation period by working with legal counsel.
With the right agreement—if they want to, and it makes financial sense for them (which is something they should discuss with an accountant or other lawyer)—spouses can continue filing joint tax returns and sharing health insurance benefits.
Separation also gives couples time to discover whether they actually want to divorce, or if they prefer to reconcile.
But don’t forget that….
While separation can sometimes be advantageous, there are several drawbacks. Beyond the obvious drawback of keeping both partners from remarrying, it can potentially expose you to financial obligations of your spouse, legal liabilities in the event of wrongdoing, can factor into your tax filings, and other concerns.
Benefits to considering divorce
Many couples who are ready to divorce prefer to move through the process with as little delay as possible. As such, extending the timeline with a separation may not make sense.
While divorce can be a painful experience, you may also feel excited about a new future. A divorce will allow you to move forward with your life and all that entails, from establishing (or reestablishing) financial independence to potentially remarrying one day.
But don’t forget that…
Depending on your specific circumstances, the timeline of your divorce may vary. It is not necessarily a quick fix to ending your relationship with your partner. While alternative dispute techniques like mediation can sometimes lead to a quicker, less contentious divorce process, it’s not guaranteed.
Can I choose divorce after a separation?
While New Jersey doesn’t recognize legal separation through a formalized process, spouses may live separately and craft a legal document that guides that separation. If they later wish to dissolve their marriage, they may do so after having lived apart for at least eighteen consecutive months with no expectation of reconciliation.
If a couple doesn’t wish to wait for a separation to pursue a divorce, they may instead opt to file for divorce on the grounds of irreconcilable differences. It is important to note that these irreconcilable differences must have existed for no less than six months.
Whether you and your partner decide to move forward with a separation agreement or a divorce settlement, it’s essential to have someone on your side to ensure that any agreement made is fair for both parties and that it considers the timeframe from separation through divorce, and seeks to address any modifications, challenges, or concerns that could arise during that time..
A seasoned legal professional can help de-stress the divorce process for you, freeing you up to focus on your goals for the future.
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