If you are going through a divorce in New Jersey, you and your spouse have likely separated and are no longer living together. During the separation and divorce process, you will have to work through many issues involving household finances and living expenses, dividing marital property and debts, determining alimony or spousal support, and more. If you have any children, you will have to consider custody, support, and visitation matters as well.
One of the first steps in a divorce is for couples to separate, but some couples separate to see if they can work out their differences before going through with the final divorce. Either way, couples can draft separation agreements that define the financial, parenting, and property arrangements during the separation period.
During a divorce, couples will have to work to create a settlement agreement that defines all the arrangements and orders regarding child custody and support, property division, and alimony. The agreement will become part of the final divorce decree once the court approves it.
You should understand what the separation and settlement processes involve so that you know what to expect and can better prepare. You should consult an experienced New Jersey family law attorney to help you understand your rights, advise you of your options, and advocate for you throughout the process.
What Are Separation Agreements?
Separation agreements usually cover the same areas as settlement agreements, such as household expenses, bills, debts, assets, and child support, but they only serve for the separation period. However, they often act as a template for the final settlement agreement.
Spouses can work together to create their own separation agreements, and they do not require a judge's signature or approval. Regardless, you should always have an attorney review your separation agreement to make sure you haven't inadvertently relinquished any of your rights or entitlements to the marital property.
Separation agreements can cover things such as who will pay the mortgage or rent and how the couple will handle bills and other living expenses. It can also specify the time period that arrangements will kick in or end if the couple reconciles. You may also be able to “freeze” assets and debts to prevent the other spouse from selling an asset or taking on additional debt.
Although separation agreements typically lay the groundwork for the final settlement agreement, they are not set in stone. During the separation and divorce, either spouse may determine certain stipulations are not working or are not in their or their children's best interest. Couples may negotiate the terms throughout the separation and divorce to reach more favorable terms. If negotiations prove futile, spouses may have to take the matter to court.
Additionally, things may happen during the divorce process that affects a separation agreement and necessitate a change in the terms. For example, the value of the marital home could increase or decrease substantially, or one spouse could lose their job or get a big promotion.
Do You Have to be Separated to Get Divorced in New Jersey?
A common misconception is that New Jersey requires couples to separate for 18 months before they can get a divorce. The 18-month requirement refers to using separation as grounds for divorce. If a couple has lived apart for 18 consecutive months, the state essentially considers their marriage “dissolved,” and they can legally divorce.
Other divorces have no separation requirement, per se, and the most common grounds for divorce is “irreconcilable differences.” Considered a no-fault divorce, it means you and your spouse have mutually determined your marriage is beyond saving and has been so for at least six months. Fault-based grounds include things such as adultery, abuse, or abandonment, among others. However, placing blame on your spouse for the divorce doesn't mean you will get better terms during the settlement.
New Jersey offers a form of divorce that does not have the lengthy process and struggle of a full divorce. This process is known as a "divorce from bed and board," or sometimes referred to as a "limited divorce." It acts similar to a separation, and spouses will separate all financial assets and property. However, they will remain married by law. This means neither spouse can marry again until they finalize their divorce.
The grounds for a "limited divorce" remain the same, but this type of divorce is merely economic and focused on separating the spouses and dividing the marital property and debts. Additionally, spouses don't typically negotiate terms like continuous spousal support and child support unless a judge requires it.
Martial Settlement Agreements
A marital settlement agreement (MSA) in New Jersey is a legal arrangement that defines the rights, roles, and responsibilities of each spouse following the divorce. Many times, the separation agreement will become the final MSA, but couples may alter the terms of the agreement through mediation, negotiation, or if necessary, litigation.
The MSA will cover all aspects of dissolving the couple's marriage, including dividing property and defining the obligations and entitlements of each spouse going forward. MSAs typically include things like:
- Marital property and debts
- Bank and financial account information
- Retirement accounts and 401(k)s
- Insurance items
- Tax items
- Other pertinent financial information
- Alimony and spousal support terms
- Child custody and support terms
- Parenting time and visitation
The MSA can include any important information you want legally enforceable. If the item is not in your settlement agreement, you will have virtually no legal recourse to make sure your spouse lives up to their end of the bargain.
Preparing a Settlement Agreement
Although you and your spouse can negotiate and draft an MSA on your own, you should strongly consider having your own attorney who can assist you throughout the process. An attorney will know New Jersey divorce laws and can advise you of your rights and advocate for you to help you get better terms when necessary.
Also, if you go to mediation, the mediator will not (and legally cannot) represent one spouse's interests over the other. If your divorce goes to court, you will certainly need an attorney to help present your case before the judge. Judges do not have to review the settlement for fairness or pass any sort of judgment on the merits of the settlement agreement.
New Jersey is an equitable distribution state, meaning the court will not divide marital property 50/50. Instead, it will distribute marital property in a manner that is fair and equitable, but not necessarily equal. For example, maybe you have a substantial 401(k), and your spouse would like to keep the family home. Instead of splitting the value of each of those, the court may award the house to your spouse while you get to keep your entire retirement fund.
An attorney can help you make informed decisions regarding your options, and they can assert your rights throughout the process and fight for you to increase your chances of getting more favorable outcomes.
Enforcing a Settlement Agreement
No matter how amicable the divorce or how well you and your soon-to-be ex get along, if you want the court to be able to enforce anything, you will have to include it in your settlement agreement.
You should consider any possible contingencies that may arise, and you want to cover everything as completely as possible. You shouldn't rely on the assumption that you can leave some things out now and finalize them later. Once you sign your agreement, the judge approves it, and the court files it, your MSA will become legally binding and enforceable as any other court order.
Modifying a Settlement Agreement
Once approved and filed by the court, your MSA will be final. Should circumstances arise and you need to amend the terms, you will need to file a motion in court to request a modification. The court has the authority to amend an MSA's terms regarding child custody and support in light of substantial developments or circumstances, such as substantiated claims of abuse or neglect.
The court may also modify spousal support and alimony terms unless the MSA contained a clause that forbids it. Terms involving asset and debt distribution may be more difficult to change, except in cases of non-disclosure, where one spouse had hidden assets that were discovered after the fact.
Get an Experienced New Jersey Family Law Attorney for Help
The divorce process can take time and be confusing and challenging to navigate. Dividing property and debts can get complicated, and creating separation and settlement agreements can be much more complex than they initially seem.
During every stage of the divorce process, you can benefit from the counsel of an experienced and dedicated Family Law attorney. Attorney Joseph D. Lento has in-depth knowledge of New Jersey's family laws, and he has helped many clients obtain the best results possible during a divorce.
If you or a loved one is involved in matters of Family Law in New Jersey, contact attorney Lento and the legal team at the Lento Law Firm today by calling 888-535-3686 or by completing our online contact form.