Legal Separation in New Jersey

New Jersey law does not formally provide for a legal separation. New Jersey does provide for something called a “divorce from bed and board,” which is similar to a legal separation. This used to be more popular than it is now. It is essentially the same as a divorce, except that a couple is still technically married and cannot remarry. One reason for a divorce from bed and board would be that a couple objects to a divorce for religious reasons. There may be other reasons, such as the ability to still receive insurance benefits from the other spouse.

There are other options for a couple to separate in New Jersey without obtaining a divorce. One is a separation agreement (sometimes called a “Marital Settlement Agreement” or a “Property Settlement Agreement”). Through these types of contracts, spouses can agree on issues such as property distribution, support, child custody, and the like. It is always best to have an attorney draft such an agreement, particularly if you wish for the agreement to be upheld by a court in the case of a later divorce.

It is also possible to separate informally in New Jersey and then sue your spouse for child support, child custody, and/or alimony without obtaining a divorce.

Initial considerations for Divorce in New Jersey

In order to file for a divorce in New Jersey, either spouse must have been a resident for at least one year prior to the filing for the divorce. The only exception to the one-year residency requirement is when the grounds for divorce are for adultery. In cases of adultery the requirement is that at least one spouse must be a New Jersey resident.

Grounds for Divorce

“Grounds for divorce” are the legal reasons for a divorce. In New Jersey, there are eight grounds or causes to file for divorce. The three most popular grounds are no-fault separation, extreme cruelty, and adultery. New Jersey permits an “irreconcilable differences” type of no-fault divorce as well as fault divorces.

No-Fault Divorce Cause of Action:

To qualify for a no-fault divorce, both the husband and wife must have lived separately in different houses (not only different rooms) for a period of at least eighteen consecutive months. There also must be no reasonable expectation of reconciliation.

Fault Grounds for Divorce:

The other lawful grounds (fault grounds) for obtaining a divorce are:

  • Irreconcilable differences that have caused the breakdown of the marriage for a period of six months and where there is no prospect for reconciliation
  • Adultery
  • Willful and continued desertion for the term of 12 or more months
  • Cruelty leading to mental or physical harm
  • Separation, where the parties have lived separately for 18 months or more consecutive months and there is no reasonable prospect of reconciliation
  • Voluntarily induced addiction or habituation to narcotic drugs
  • Institutionalization for mental illness for a period of 24 or more consecutive months after marriage and before filing for divorce
  • Imprisonment for 18 or more consecutive months after marriage, except where the spouses have resumed living together after release from prison and the divorce action is not started until after release from prison
  • Deviant sexual conduct voluntarily performed by one of the spouses without the consent of the other

Division of Property

How is property divided in a divorce?

Everything a husband and wife own (whether individually or commonly) is divided into one of two categories under New Jersey law: (1) marital property, and (2) separate property.

New Jersey is an "equitable distribution" state. This means that spouses “equitably distribute” property that is deemed under New Jersey law to be “marital property,” or property acquired during the course of marriage.

Notice that New Jersey law does not say that marital assets should be distributed “equally.” Instead, the term “equitable” is used. This term essentially means that assets are distributed according to what is deemed to be fair, just, or right. It does not necessarily mean that the actual outcome will be an equal or 50/50 distribution.

If property is not deemed to be “marital property,” it is considered to be “separate property,” or property that was acquired by a spouse before marriage or property that was inherited or given as a gift to a spouse during the course of marriage. However, if property (or income derived from property) has been used for the common benefit of the spouses during their marriage, it would be considered marital property. Any property that is considered to be “separate property” will be given to the spouse who owned it before the marriage or to whom it was given during the marriage.

A court may consider the following factors in determining the distribution of marital property:

  • duration of the marriage or civil union;
  • age and physical and emotional health of the spouses;
  • income or property brought to the marriage;
  • standard of living established during the marriage;
  • any written agreement made by the parties before or during the marriage concerning an arrangement of property distribution;
  • economic circumstances of each party at the time the division of property becomes effective;
  • income and earning capacity of each party along with other factors;
  • contribution by each spouse to the education, training or earning power of the other;
  • contribution of each spouse to the acquisition, dissipation, preservation, depreciation or appreciation in the amount or value of the marital property;
  • tax consequences of the proposed distribution to each spouse;
  • present value of the property;
  • need of a parent who has physical custody of a child to own or occupy the marital residence or residence shared by the partners in a civil union couple and to use or own the household effects;
  • debts and liabilities of the spouses;
  • need for creation, now or in the future, of a trust fund to secure reasonably foreseeable medical care;
  • extent to which a party deferred achieving their career goals; and
  • other factors that the court may deem relevant.

Alimony in New Jersey

Alimony (also known as spousal support) is the court-ordered financial support of one spouse by the other spouse as part of a legal separation or a divorce.

There are different types of alimony in New Jersey, including:

• • Permanent Alimony: This is alimony that is awarded for life to a former spouse. It is typically only awarded after a long lasting marriage where there is a large disparity in income and earning potential between the parties. Permanent alimony can be modified or terminated, but the legal standards are high for reducing or eliminating it.
• • Temporary Alimony: Also known as “pendent lite” alimony, this is alimony that is awarded during the pendency of the divorce.
• • Rehabilitative Alimony: This is alimony that is limited in duration, but does not terminate if the recipient spouse remarries. Its purpose to it aid the recipient spouse in becoming self supporting.
• • Alimony for a Limited Duration: Also known as “term alimony,” this is alimony that is only paid for a specific length of time.

While there are no specific guidelines that direct New Jersey family courts in awarding alimony, New Jersey law requires courts to consider specific factors in determining whether to grant alimony and in determining the amount and duration of alimony. Some of the factors that a court considers are:

• 1. The actual need and ability of the parties to pay,
• 2. The duration of the marriage,
• 3. The age, physical and emotional health of the parties,
• 4. The standard of living established during the marriage and the likelihood that each party can maintain a reasonable comparable standard of living,
• 5. The parties' earning capability, education and employability,
• 6. The length of absence from the job market,
• 7. Parental responsibilities for the children,
• 8. The time and expense needed to acquire education or training to enable a depended spouse to obtain appropriate employment,
• 9. The financial and non-financial contributions of each spouse to the marriage,
• 10. Equitable distribution,
• 11. Income available and non-financial contributions of each spouse to the marriage,
• 12. The tax consequences of alimony,
• 13. Any other factor which the court deems relevant.

It is also important to note that alimony and equitable distribution (that is, property division) are interrelated. Assets, including retirement benefits, that are received through property division can potentially affect whether alimony will be awarded and the amount and duration of alimony.

Tax Consequences of Alimony

It is important to understand that there may be tax implications for individuals who pay or receive alimony. According to Section 71 of the Internal Revenue Code, alimony must be included in the recipient’s gross income and can be excluded from the payer’s gross income.

However, it is critical that payments actually qualify as alimony under the law. To qualify as alimony (also according to Section 71 of the Internal Revenue Code), payments must generally meet five conditions:

• (1) The payment is be a cash payment (such as a check or money order)
• (2) The payment is received by (or on behalf of) a spouse under a “divorce or separation instrument”
• (3) The divorce or separation instrument does not designate the payment as a payment which is not includible in gross cross income as alimony and not allowable as a deduction for the payee spouse (under Section 215 of the Internal Revenue Code).
• (4) The payer and payee are not members of the same household at the time payments are made
• (5) There is no liability to make payments after the death of the recipient spouse

Sometimes it is difficult to determine whether a payment qualifies under the law as alimony. There also may be state and local tax implications for individuals who pay or receive alimony. Therefore, it is best to consult with an attorney or qualified tax professional.