Separation vs. Divorce
When couples decide to get divorced, there are many unknowns that the couple must face in order to secure a divorce decree. This is often because, when people get married, they do not expect that they will get divorced. Consequently, they feel as though there is no need to understand certain basic tenets of the divorce process until the time comes when they desire to be divorced. One common misconception that couples have when undergoing the divorce process is that they believe being separated is the same thing as securing a divorce. This is not the case according to New Jersey law. Below, we discuss the differences between a separation and a divorce as defined by New Jersey law.
According to New Jersey law, separation is the act of ceasing to cohabitate with one another. Unlike a divorce, becoming separated from your spouse does not require you to file any documents with a New Jersey court to declare that you and your spouse are separated. Rather, just as the name suggests, the spouses must merely start to live separately from one another, even if this is in the same dwelling, to be considered separated in the eyes of the law. To be clear, if spouses are separated, they are still considered married to one another. This means that spouses who are separated may not legally remarry until they secure a divorce decree entered by a New Jersey court.
With respect to the interplay between separation and divorce in the context of New Jersey’s divorce code, it is important to note that, unlike in other states, there is technically no legal requirement to be separated from your spouse before securing a divorce decree in New Jersey. However, depending on the grounds on which you bring a divorce action, being separated before getting a divorce may be necessary.
While separation does not change the legal relationship of the spouses to one another, divorce is different in that it permanently alters the legal relationship of the spouses. Divorce is defined as the complete dissolution of a marriage. Unlike when spouses separate, when a divorce is finalized, the spouses are no longer considered spouses in the eyes of the law, and, rather, are considered single persons. Accordingly, to secure a divorce, one of the spouses must file a complaint in divorce in a New Jersey court and must wait for a judge to enter a divorce decree declaring that the spouses are divorced.
Once a divorce is finalized, the estates of the spouses are forever separated (unless, for some reason, the spouses decide in a divorce agreement to continue to jointly own property). While couples undergoing divorce typically divide assets prior to the entrance of a divorce decree, under New Jersey law, if spouses still own real property as tenants by the entireties, this interest immediately transfers to a tenancy in common. This is important to know because the rules regarding your rights to the real property change depending on the type of tenancy the parties have with one another. When spouses are separated, on the other hand, unless they enter into a separation agreement, they still own all marital property jointly.
In addition to separation of the respective spouse’s estates, obtaining a divorce means that you are now treated as a single individual for tax purposes. While those who are separated typically file taxes as single taxpayers instead of jointly, in some cases, those who are separated can still file taxes jointly. Accordingly, when deciding on whether to pursue a divorce or to merely separate from your spouse, it is important to review the tax consequences of this decision.
Contact a Moorestown Family Law Attorney for a Consultation About Separation and Divorce in New Jersey Today
If you are thinking about filing for divorce, or if you have already started the divorce process and are dealing with another matter such as child custody, child support, or division of assets, you need to speak with a qualified attorney. The New Jersey family law attorneys at Cordry Hartman, LLC represent clients throughout the state, including Moorestown, Cherry Hill, Camden, and Woodbury. We understand how challenging this time can be for you, which is why we will fight hard to protect your interests, and the interests of your loved ones, throughout the legal process. Call us at 1-856-452-4474 or fill out our confidential contact form to schedule a consultation. We have an office conveniently located at 505 S. Lenola Rd. Ste 224, Moorestown, NJ 08057.
The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.