Clients often ask me about being “legally separated” and our discussion then goes off in different directions depending on what it is the client is really asking. Sometimes they want to remain married, but they don’t want to live together. Sometimes they want to wait some time and then get divorced. Sometimes they really don’t know what they want and just figure a separation happens before a divorce.
The actual answer to the question is “No”, there is no such thing as a legal separation in New Jersey. You are married until the day that the Court declares that you are divorced. However, that being said, there is such a thing as a limited divorce in New Jersey called a “divorce from bed and board” which is the closest analogy to a legal separation.
When couples decide to marry, each say “I do”. When one party decides to get a divorce, you do not need consent of the other party. Rather, one party may file a Complaint and ask that the Court dissolve their marriage. In that situation, the party is requesting an “absolute divorce”. In an “absolute divorce” the bond of matrimony is forever severed and all of the property acquired during the marriage is somehow divided.
In contrast, a “divorce from bed and board” is a limited form of divorce that continues to bind the couple to some degree. Although all of the property acquired by the couple during the marriage is divided, the bond of matrimony is not severed and, for that reason, both parties must consent to a divorce from bed and board.
Why then, you may ask, would one want a divorce from bed and board? The major benefit of a divorce from bed and board pertains to the issues of medical insurance and pension benefits. For example – if the Wife is covered by a policy of insurance offered by Husband’s employer, she is covered because she is a family member. When the parties obtain an absolute divorce, Wife is no longer a family member and therefore she can no longer be insured under Husband’s plan. Wife may be able to request continued coverage from that insurer, but the cost of those continued benefits can be staggering. Alternatively, when there is a divorce from bed and board, Wife continues to receive coverage under Husband’s plan because they are still bound by the bond of matrimony.
Further, if there is a divorce from bed and board the dependent spouse may still be entitled to survivor benefits under their spouse’s retirement plans and that benefit alone may be significant to the dependent spouse.
A divorce from bed and board can be analogized to a hybrid state of divorce and separation. All of the finances of the parties are separated and all of the marital property is divided. However, because there is still that bond of matrimony, neither party can remarry until an absolute divorce is granted. The statute provides that one party must apply to the court to convert a divorce from bed and board to an absolute divorce and there is no mandatory waiting period between the entry of a judgment for a divorce from bed and board and judgment of an absolute divorce. In most instances, assuming that all of the marital property has been properly divided and the Judgment properly drafted, there should not be any problem with converting the divorce from bed and board into an absolute divorce.
As with all matrimonial issues, the safest way to protect your self and your assets is to seek legal assistance to help guide you through the process.
The dependent spouse can remain on the other spouse’s health insurance plan and the dependent spouse will most likely be able to receive survivorship benefits from their spouse’s retirement plan.
The paying spouse can negotiate a lower alimony payment in exchange for the health benefit and survivorship benefits the dependent spouse will be receiving.
It the parties decide to reconcile, they can simply move to revoke the divorce from bed and board and they need not remarry.
Neither party can remarry until the divorce from bed and board is converted into an absolute divorce.
Both parties must agree to keep the bond of marriage, that is, both must agree to the limited divorce from bed and board.
Some issues may develop which will impact on the conversion of the divorce from bed and board to an absolute divorce.
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