New Jersey does not have legislation sanctioning a "legal separation" for a married couple wishing to separate but not file for divorce. However, there are two procedures which may aid in dealing with the parties’ issues, short of filing for divorce. One proceeding is to file a Complaint for Separate Maintenance. This type of Complaint allows a separated spouse to file for support, whether spousal support and/or child support, from the other spouse. It does not affect the status of a marriage nor does the action deal with other issues such as equitable distribution.
The second procedure is to file a Complaint for Divorce from Bed and Board. The causes of action (i.e., irreconcilable differences, adultery, extreme cruelty, etc.) are the same as for a Divorce from the Bonds of Matrimony, or what we often refer to as an absolute divorce. However, both parties must petition or join in requesting said relief. This type of limited divorce nullifies the marital obligation of co-habitation, but the marital bond is not dissolved. Further, all property rights of the parties are set at that time. Practically speaking, the parties should enter into a Marital Settlement Agreement encompassing all of the issues involved in an absolute divorce such as custody, parenting time, child support, alimony, and equitable distribution. If an Agreement cannot be reached, a trial will ensue.
A Judgment of Divorce from Bed and Board may be converted into a Divorce from the Bonds of Matrimony by either party, which application shall be granted as a matter of right. In the event the parties reconcile, they may apply for a revocation or suspension of the Judgment of Divorce from Bed and Board.
Several reasons why parties may choose to separate and not divorce are (1) to continue health insurance for the spouse who is covered by the other spouse’s employer’s insurance; (2) to escape rising medical bills for an ill spouse which threatens to dissipate all marital assets; (3) religious concerns or social stigma; (4) to give the parties time to determine whether they in fact want an absolute divorce; or (5) to allow a spouse to remain in the United States, although not a citizen or holder of a green card.
With respect to the above, the most common reason people file for Divorce from Bed and Board revolves around health and health insurance. Given the prohibitive cost of health insurance premiums for a non-working spouse and/or that spouse’s inability to obtain independent health insurance at a reasonable cost if ill, the parties may wish to continue as married in order to keep that party covered. Before taking this route, it is advisable to review the provisions of the employee spouse’s health insurance policy to determine who qualifies as a dependent and whether a limited divorce affects eligibility for benefits.
There are drawbacks to obtaining a limited divorce, which should also be considered. First, neither party can remarry since they are still married to each other. Second, if one of the spouses dies, the other spouse cannot inherit from the deceased spouse, since New Jersey’s laws revoke probate and non-probate transfers between divorced individuals. For purposes of this law, divorce includes a Judgment of Divorce from Bed and Board. Third, any property acquired by either party after a Judgment of Divorce from Bed and Board is that party’s separate property and not subject to equitable distribution. Finally, you may no longer file federal income tax returns as married, which generally produces tax savings.
In determining whether to file for absolute or limited divorce, it is advisable to discuss the options with your attorney and to compare the pros and cons to your individual case.