Legal Separation In NJ
Legal separation is a term that you do not hear too much about these days but it is a real remedy offered under NJ law. In fact, some family law attorneys will use the term "de facto separation" to refer to parties who are living separate and apart but have not yet completed the divorce process, either because they haven’t started or in the case of a post-judgment application to compel enforcement, there is a disagreement over the parties’ intentions as to the prior settlement agreement or judgment of divorce .
Legal separation in New Jersey doesn’t really involve too much of a difference from a divorce except in the sense that the parties never end up in front of a judge to have a final judgment of divorce entered. However, if the court does impose a Title 9 action for domestic violence and the parties obtain restraining orders, they may never meet in the courtroom again. The restrictions associated with a final restraining order are permanent but some forms of relief are only temporary such as alimony and exclusive possession of the marital home while a divorce is pending.
Who Can File For Legal Separation In New Jersey
The eligibility requirements for filing a legal separation in New Jersey are governed by a set of general rules. First, either spouse must be a resident of New Jersey for at least 12 consecutive months before filing the legal separation or, alternatively, have been married in New Jersey and then moved to the state where he or she lived for five years preceding the filing. Consider the following scenarios with respect to residency and legal separation:
Additionally, before filing for legal separation, the parties must be living separately for at least six months. The Courts of New Jersey encourage the separation period to be prior to filing. A Judge will not approve separation agreements that have been signed while the parties are still residing together. In order for an agreement to be sanctioned, it must be dated after the date of separation.
How To File For Legal Separation In NJ
If you have decided that separation is the right choice for you, then you can file for legal separation in New Jersey. The filing process steps are as follows: First, preparation: As with filing for a divorce, the basics include defining your shared marital property and assets, debts, and other items. You can review the marital finances with a divorce attorney during a free consultation. Step two, petition for separation The petition involves both a Judgment of Separate Maintenance and a Complaint for Separate Maintenance. – The judgment outlines how you want the court to distribute marital assets. It is similar to alimony, though it typically includes any modifications regarding custody, child support, and more that you may be seeking. – A complaint for separate maintenance is filed with the court at the same time. This is a more detailed explanation of what you are seeking and why. Step three, present to the court You will have to present this information to a Superior Court Judge. This can be somewhat more difficult than filing for divorce. Divorce cases are almost always settled prior to going to court. The same is not always true of separation cases. Step four, implementation At this stage, the judge will decide what is fair and equitable. You may be required to submit additional paperwork called a Final Order or Judgement of Separate Maintenance. Once this is done, the terms of the separation will go into effect.
Documents Needed For Legal Separation In NJ
Just as you would file papers to divorce your spouse, you need to compile a number of documents to legally separate your family in New Jersey. You may do this yourself or ask a legal professional to handle the paperwork on your behalf. Regardless, New Jersey courts ask you to file standard forms to document your separation, whether or not you intend to proceed with a formal divorce.
Financial Disclosure Documents
In New Jersey, couples who wish to separate complete a Case Information Statement that parallels the Case Information Statement for a divorce. The statement includes details about each spouse’s income and expenses, along with the address of the primary residence. While you will note where you live, you will not have to disclose your specific address after you leave.
Custody Agreements
If you have children, you will have to provide a copy of the custody agreement with the New Jersey courts. You can write up the custody agreement yourself, or you may want to work from the application provided by the New Jersey Superior Court. You can find the form online, or you can ask the court for a copy.
Separation Agreement
The final key document you need is a separation agreement. This will be a document requesting a temporary or indefinite legal separation from your spouse. You can start from the one provided in the Divorce Package of the New Jersey Superior Court website, but you will need to customize it for your situation. For example, you will indicate whether you are requesting alimony, child support or a property settlement. If you are not filing for divorce, you will request the relief you want specifically for the separation. If you are filing for divorce, however, you will replace "legal separation" in the form with "legal divorce".
After compiling these documents, you can file them in person or online. To file by mail, you will click on the county in which you or your spouse resides and download the case documents to complete. To file online, you will first create an account on the eCourts system. You then will log in, select the nature of the matter, and complete a form to submit. You also will have to upload PDFs of all documents and then pay a filing fee if you would like to obtain a stamped Order Separate and Certificate of Non-Relationship.
Legal Separation Agreement Details
In New Jersey, a legal separation agreement often follows much of the same structure as a divorce agreement. If there are children, the custody component usually covers the physical possession schedule, parenting time details, and decision making authority. The component of the legal separation agreement that addresses child support will calculate the amount of monthly payment, how it is to be paid, and if there is a need for a trust that is created in the name of the child, it will address those parameters. It will identify if the child support ends when the child turns 18 years or if there is an extension until the child is emancipated. This section may also address what happens if either party violates the agreement as to custody.
When children are part of the equation, the legal separation agreement will cover issues as to where the children are going to go to school, which one of the parties will pay for any private tuition or daycare, and annual expenses in relation to extracurricular costs. Legal separation agreements typically will address what happens if one of the parties buys the marital residence and the other party moves out and if there is a buyout formula in place, it will be addressed . There are times when one party wants to keep the home, and in those cases, the legal separation agreement will provide for when that equity will be paid at a later date. Sometimes, it may even provide what the proceeds from sale of the asset can or should be applied towards.
Spousal support obligations will be addressed in the legal separation agreement. The duration of support and the amount of support will be set forth in this section. Just like in an agreement of divorce, the alimony will be calculated utilizing the alimony advisory schedule, and then adjust with deductions that the payor is entitled to.
Most legal separation agreements will address who pays for health insurance (subsumed in the alimony award). In regards to credit cards and debts, sometimes, the legal separation agreement will identify which party will pay the monthly bills. Other times, the legal separation agreement will agree that the parties will get their own credit cards and debts in their own name, agree to keep them distinct and, if one party accumulated the debt in his/her name during the marriage, that party will be entitled to indemnification if a party tries to obtain a credit card in someone else’s name.
Cost and Time Required For Legal Separation In NJ
The process for filing for legal separation in New Jersey can vary in costs. Once an individual has decided to file a complaint with the court, they will be responsible for paying a set of fees and costs. Other than attorney’s fees, the parties are responsible for filing fees, service of process fees and subpoenas (if necessary). It is important to note that spouses may be eligible for a fee waiver (also known as IFP) if they do not meet the financial threshold.
For filing for legal separation, parties can expect to pay approximately $300 depending on the situation. Service of process fees vary per county. For instance, in Morris County costs are $50 for most documents, while in Sussex County fees generally cost between $50 – $60 per document.
If husband and wife cannot reach an agreement through mediation and/or settlement negotiations, unfortunately, you may be looking at a trial to determine whether you will be receiving spousal support, child support, marital home, etc. The length of the process depends on the couple and amount of issues that they need to resolve at trial versus settling between the parties. If there are no or few issues, the process can last anywhere from 6 months to a year. However, if the couple has many issues, it can take anywhere from 1 year to 2 years from the time the process starts to the time the judge signs the final terms of the divorce.
Pros and Cons Of Legal Separation
**Benefits and Drawbacks of Legal Separation in New Jersey**
Advantages under New Jersey law
From a legal perspective, there are many advantages that married couples can obtain by filing for legal separation. The following are some examples:
A reduction in alimony payments is one example. In New Jersey, courts automatically impute a new income to the lower earning spouse when he or she remarries. This is because the law assumes that the spouse will receive additional financial support from the new partner, thereby revoking a major component of alimony. However, when the spouse is legally separated — and not yet divorced — the court will unlikely impute new income to the spouse.
A similar rationale applies when determining child support obligations. Because remarriage of a spouse serves to reduce a child support obligation (for children under age 18), the law similarly protects the legal separated spouse and assumes that any potential new partners will be unable to fully reduce the support payment.
From an emotional standpoint, legal separation may also benefit couples who need "breather" away from one another but may not have sufficient resolve to completely sever ties.
Disadvantages of legal separation
While it may serve certain couples well, there are also clear disadvantages to legal separation. For instance:
Additionally, the legal separation process bears most of the costs associated with a divorce. So financial resources and family cohesion diminish equally, if not more than they would in a complete separation or divorce.
Limitations of legal separation
Legal separation and divorce are entirely different processes under New Jersey law. Therefore, a couple cannot simply file for legal separation as a means to avoid divorce; nor can a couple file for divorce after obtaining a "temporary divorce." Because they are separate procedures, the legal separation may also be short-lived or deemed premature if a divorce proceeds before the parties can fairly settle their respective property and financial claims.
Consulting Legal Professionals
Before filing for legal separation, it is strongly recommended that individuals seek the advice of a qualified, competent attorney. There is much to consider when deciding whether or not to file for legal separation, and many issues to address if you do make that decision. An experienced legal professional will assist throughout the entire process, ensuring you consider all options and make informed decisions that are in your best interests. Additionally, you must prepare for the divorce process if the legal separation does not prove sufficient to save your marriage.
A divorce separates one individual’s property from another’s, dividing all marital assets and liabilities. Some choose to pursue legal separation or divorce pending before eventual dissolution of their marriage, but the terms of a legal separation are generally dictated by both parties . It is therefore important to work with an attorney who can help negotiate the terms of agreement and draft a legally binding separation agreement — legally separating your assets and liabilities, and making decisions regarding alimony, custody, and child support.
The dissolution of a marriage is a complex process, subject to both federal and state laws. Though divorce is relatively common, every case is unique, and it is critical that you enlist the help of a capable legal professional to guide you through the process. The complexities of a legal separation paves the way for complicated divorces, and those filing for legal separation would do well to seek the counsel of a qualified attorney.