What Is Legal Separation?

Divorce is a common choice for spouses who have decided to end their relationship. However, when a marriage is going through a difficult period, spouses often face tough decisions, especially pertaining to their children, finances, family dynamics, and their future together. Since every marriage has different priorities and comes with its own unique challenges, some spouses choose what is colloquially known as “legal separation” instead of divorce. Understanding the difference between divorce and separation with legal parameters can help you determine which option is best for your situation.

Understanding Separation Agreements

Crucially, there really is no such thing as legal separation as far as New Jersey courts are concerned. New Jersey law and the Court Rules do not provide a dedicated procedure for legal separation. In reality, what people commonly regard as legal separation is a formal and enforceable written separation agreement that spouses enter into when they decide to live separately while remaining legally married. The Court will enforce such agreements that govern rights and responsibilities when it comes to financial support, assets, and debts. If you share children, this agreement also outlines child custody, visitation, support, and other obligations regarding the children. A separation agreement is nearly identical to an agreement reached in a divorce settlement. The main difference is that the agreement is temporary in nature and does not end the marriage.

Separation Agreement vs. Divorce

Divorce is a permanent end to a marriage, which allows both individuals to remarry in the future if they choose. On the other hand, separation agreements keep the spouses’ marital status intact and govern how they will conduct themselves and manage their family affairs while living apart. This is an appealing option for spouses who are against divorce for personal or religious reasons or for those who want to retain certain benefits, such as health insurance,  tax advantages, and inheritance rights. Additionally, the parties can have certainty if they are attempting a trial separation to see if they can save their marriage.

Pros and Cons

One of the main benefits of remaining married with a formal separation agreement in place is that the spouses can live independently while maintaining shared health insurance coverage and tax filing advantages. Separation agreements can provide the time and space needed to reflect on the marriage and potentially lead to reconciliation without the finality of divorce. It can also be a more suitable option for spouses due to religious or other objections to divorce.

While there are advantages, there are also downsides to these agreements. It may seem like the simpler solution, but in reality, it can be just as emotionally and legally complex as a divorce. Spouses still need to negotiate on key issues like management or division of assets, debts, and child custody. The prolonging of the marriage through separation agreements can result in emotional uncertainty or be viewed as delaying the inevitable. Even though you are living apart, there are still legal ties between spouses, and your decisions in the future, both personally and financially, can cause complications for each other.

How to Enter into a Separation Agreement

Separation agreements are a product of negotiations. Once the parties have reached an agreement and signed it, either party files a complaint in the Court under the non-dissolution docket. The non-dissolution docket is dedicated to cases where the parties have either never been married or are remaining married without divorcing. The complaint filed under this docket will simply request that the Court incorporate the separation agreement into a fully enforceable court order. Once the Court enters the order, either party may request enforcement of the order if the other party violates it. If someone violates the agreement and the Court enforces it, the party who violated it may be subject to various sanctions such as financial sanctions, paying the other party’s attorney’s fees, or even contempt of court in particularly egregious cases.

There are also rare cases where a spouse may file a contested complaint under the non-dissolution docket to request certain relief related to financial support and child custody over their spouse’s objection. This is rare because people usually do not want to remain married at all in such a situation, and separation without divorce is most often a mutual objective. Someone cannot force their spouse into a separation. It is also rare because it often just causes the other spouse to file for divorce under the Court’s matrimonial docket, which nullifies the case under the non-dissolution docket. Importantly, the Court will not perform a final division of assets and debts in contested non-dissolution cases because such a final division is reserved for equitable distribution in the divorce process.

Reach Out to Our Firm to Discuss Separation Agreements

Separation agreements affect your legal rights and future. Thus, it is strongly recommended that you work with a family law attorney to help guide you through each step of the process. At Moskowitz Law Group, we understand that a separation agreement is a major step that can offer structure during a challenging time. Our experienced family law attorneys can help you understand your options and protect your interests. If you are considering entering into a separation agreement, contact us today to schedule a free case evaluation.