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Divorce Law

"Legal Separation" in New Jersey: Although It Exists, It is Rarely Used

While there is a cause of action in New Jersey for legal separation, relatively few people make use of it. The vast majority of litigants file for divorce. People who choose not to get formally divorced (usually for reasons relating to medical insurance coverage) usually enter into marital separation agreements as an alternative to divorce. In common parlance, people who enter into New Jersey marital settlement agreements oftentimes refer to themselves as being "legally separated".

New Jersey's Version of Legal Separation - N.J.S.A. 2A:34-3:

The New Jersey Statutes expressly provide for a cause of action known as "divorce from bed and board". Specifically, N.J.S.A.2A:34-3 provides that:

a. Divorce from bed and board may be adjudged for the same causes as divorce from the bonds of matrimony whenever both parties petition or join in requesting such relief and they or either of them present sufficient proof of such cause or causes to warrant the entry of a judgment of divorce from the bonds of matrimony, provided further that in the case of a reconciliation thereafter the parties may apply for a revocation or suspension of the judgment, and provided further that the granting of a bed and board divorce shall in no way prejudice either party from thereafter applying to the court for a conversion of said divorce to a divorce from the bonds of matrimony, which application shall be granted as a matter of right.

The foregoing language does not make specific use of the phrase "legal separation". However, its intent and effect are exactly the same as statutory provisions in other states (for example, New York, Ohio, and Maine, to name just a few) that make specific use of the phrase "legal separation." In fact, the New Jersey Appellate Division has specifically described divorce from bed and board as "New Jersey's statutory version of legal separation." Pipitone v. Pipitone, 2009 WL 3429561.

However, if you were to file for a legal separation (or, to put it more accurately, a divorce from bed and board), you would be among a small minority of litigants who do so.

You may occasionally hear people say that they are "legally separated". In most instances, they are referring to the fact that they are living separate and apart from their spouse pursuant to a legal separation agreement. Provided that there has been full financial disclosure by both spouses, New Jersey courts routinely enforce marital separation/settlement agreements, and incorporate their terms and provisions in divorce judgments. Each year, the attorneys at Rapaport Law Firm help dozens of our New Jersey clients get "legally separated" by helping them negotiate marital settlement agreements.

Legal Separation as an Anachronism:

For the most part, the cause of action for legal separation (again, more accurately, divorce from bed and board) is an anachronism. It is a holdover from the days before no-fault divorce became available nationwide. In those prehistoric days (i.e., the days of fault-based divorce), there was a need for a legal basis for people to move on with their lives even if they were unable to (or, for religious reasons, did not wish to) establish "fault" required for a final divorce judgment. Legal separation gave people a way to achieve resolution of issues (such as alimony, child support, etc.) even if they could not meet the standard of proof for a divorce judgment.

In many respects, legal separation resembles divorce. For example, once you get a judgment of legal separation, you do not share in your spouse's estate if he or she dies intestate (i.e, without a will). In addition, upon obtaining a judgment of divorce from bed and board, each party may acquire property free of the rights that the other party would have in that property if they were not divorced.

Legal Separation and Marital Separation Agreements as Ways to Continue Medical Coverage:

Today, legal separation is most commonly used as an alternative to divorce for couples where a spouse needs to continue receiving health insurance coverage under the other spouse's employer-sponsored health insurance plan. This is something that cannot continue once a divorce judgment is entered. If a final judgment of divorce is entered by a court, the former spouse must either pay for COBRA, or get his or her own health insurance policy.

If continuation of health insurance coverage is a major concern for you, I recommend that you consider entering into a New Jersey Marital Separation Agreement. This enables you to resolve all of your marital issues without losing health insurance coverage under your spouse's insurance plan. A marital settlement agreement also enables the parties themselves to take control of how their financial and other issues are resolved, rather than endure the expensive and uncertain process of having a judge decide.


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