Divorce FAQ's

Separation Agreements

1. What is a legal separation?

There really is no formal court proceeding to obtain a legal separation in New Jersey. There is an outdated court proceeding called a “divorce from bed and board” that is similar to a legal separation. Basically, a divorce from bed and board is a legal proceeding that is not really a divorce, but it is more than a legal separation. A divorce from bed and board was very popular in the 50’s and 60’s. Many people believed that getting a divorce was a mortal sin, and that they would go straight to hell. These kinds of beliefs were especially prevalent for people of the Catholic faith.

To address these concerns the courts developed a legal proceeding called a “divorce from bed and board.” In this type of court case, the parties are economically divorced, but they are still legally married. The parties will receive a judgment that equitably distributes the assets, support awards will be issued, and debts will be apportioned. In these types of cases alimony is usually not awarded. Moreover, pensions can’t be subject to a QDRO.

2. What are the benefits and the drawbacks of a divorce from bed and board?

The benefits of having a divorce from bed and board are that the surviving spouse still retains inheritance rights. A spouse can still receive health insurance benefits from the other spouse because there is not a complete divorce. In my experience, retaining the health benefits are the primary reason why a couple may choose to pursue a divorce from bed and board. In many cases, it is impossible for a divorced wife to obtain affordable health insurance benefits after a divorce. Therefore, if a wife has a health condition, then it is imperative that she is able to maintain adequate health insurance. In my experience, if there is a long term marriage, then a divorce from bed and board can enable a wife to retain her health insurance, and assist her to avoid paying oppressive Cobra payments, or trying to purchase an exorbitantly priced health insurance policy. A spouse will also be able to retain pension benefits if there is a divorce from bed and board. Another benefit is that the family unit can still remain somewhat intact. In summary, a divorce from bed and board is a court case that is proceeding essentially half way between a legal separation and a full divorce. This type of legal proceeding is advisable if the parties are still civil to each other. Moreover, this type of court case is really only applicable to a very long term marriage, wherein no person has any intentions to remarry.

The drawbacks of a divorce from bed and board are that the parties are still technically married. Therefore, it may be impossible for the spouses to date other people. Even though the spouses are economically divorced, they still are technically married. Moreover, many spouses still may attempt to exert control over the other spouse because they are still technically married.

3. What is a separation agreement?

A separation agreement is a legally binding agreement between spouses that covers the period of time from when you separate until the divorce. It is a contract that outlines the terms of the couple’s separation, and it generally resolves all issues relating to child custody, child support, alimony, division of property, and apportionment of debt. To be valid, a separation agreement must be in writing, signed by both parties, and it must be notarized.

A legal separation is normally the first step in a divorce case. At the time of the legal separation, the debts and property are usually “frozen” and made are separate for each spouse. During the legal separation, if your ex-spouse goes out and runs up huge credit card bills, then you aren’t responsible for them in the view of the court. A spouse is also prohibited from disposing or converting marital assets during the legal separation.

4. Why would a couple want to pursue a legal separation instead of a divorce?

Many times a couple may have religious reasons for not wanting a divorce. Additionally, in New Jersey a person has to be separated for 18 months to have a “no fault” divorce. In New Jersey if either spouse lives apart in a legal separation for 18 months, then either the husband or the wife can file for divorce under the no fault grounds. In my experience, many people get hung up on only wanting to file for a no-fault divorce. The most common ground to file for divorce is under “extreme cruelty.” The term “extreme cruelty” is only a term of art, and it does not really mean that your spouse was extremely cruel to you. The divorce pleadings can merely specify that the parties no longer get along. This type of language is sufficient to persuade a court to grant a divorce. A spouse does not have prove any of the gory details of extreme cruelty in order to get divorced.

5. What terms should a separation agreement contain?

A separation agreement is a contract between a husband and wife.
Many times the parties believe that they should separate before they plunge into a divorce. A separation agreement should contain the following terms:

  1. Payment of child support.
  2. Payment of spousal support.
  3. Payment of daycare expenses.
  4. Payment of miscellaneous medical bills.
  5. Maintenance of health insurance for the family.
  6. Who is going to pay for the mortgage and the household bills.
  7. Who is going to pay the property taxes.
  8. Who is going to pay for the car lease payments or car payments.
  9. Who is going to pay the credit card bills.
  10. Preparation of any tax returns.
  11. Payment of any back taxes that may be due.

6. Do you need to go to court to obtain a separation agreement?

You do not have to go to court to obtain a separation agreement. A person can draft his/her own separation agreement. However, this is not advisable. There are an abundance of family lawyers in New Jersey. There are many affordable divorce lawyers in the Garden State. Moreover there are many drafts of separation agreements that are posted on the net. A wife should file a complaint for separate maintenance if she wants to receive child support. This type of proceeding is also known as a child support hearing or a FD case. A FM case is a divorce case. At a child support hearing a child support hearing officer or the court will establish a child support award, the payment of any daycare expenses, and order that the husband maintain health insurance for the children.

I always advise every wife that I represent to immediately go to the Probation Department and to file a complaint for child support. There is usually a three to five week lag time before the wife receives a court date. Therefore, it is always advisable to file for child support as soon as possible. The Probation Departments are located in every County Court House. Each individual Probation Department has different intake procedures. However, all of them require that you bring all income information and health insurance info with you at the first meeting.

A wife should never rely on the presumption that the husband will directly pay her for child support and alimony. The child support and alimony should always be garnished. The benefits of a garnishment always outweigh the direct pay method. First, a garnishment cuts down on accounting issues. Many husbands always create arguments over how much they owe to their wives for missed payments. The Probation Department keeps detailed records of all payments, and they serve as a neutral arbitrator. Second, a garnishment gives a wife control over her finances. It is a miserable feeling to have to always look in the mailbox for your support check. A garnishment solves this problem. If a husband is garnished then the support check can be direct deposited into the wife’s account.

7. I have cheated on my wife. Therefore, out of guilt I have signed a separation agreement that gave the house and all of my money to my wife. I have now come to my senses, can I find a way out of this separation agreement?

The unfortunate answer to this question is no. The courts are obsessed with resolving cases. The judges are graded by how quickly they move their calender by the AOC. The AOC is the agency that monitors the courts in New Jersey. If a judge does not move divorce cases quickly then he or she receives negative marks. Consequently, the courts always have an inclination to enforce separation agreements. There is an overwhelming theme that the law favors the amicable resolution of divorce disputes. I had a case wherein a husband signed an unfair separation agreement and he gave the entire home to his wife. The home was the couple’s only asset. I tried in vain to have the separation agreement set aside. However, my efforts were no successful. Only in rare cases will a court set aside a separation agreement.

8. Under what type of circumstances can a separation agreement be set aside?

In some cases, a devious husband may use economic pressure or threats of physical violence to force a spouse to sign a separation agreement. A “traditional rule” in New Jersey is that contracts between a husband and wife are not enforceable because usually the husband has a dominant influence over his wife. Courts have traditionally scrutinized separation agreements that are signed by a wife. The court will also assess whether the wife has been defrauded, coerced by undue influence, or by improper conduct.

Moreover, when a wife has not been represented by an attorney, and assuming that there was no knowing and voluntary waiver of counsel, then it is likely that the separation agreement will be set aside. Many courts will not enforce a separation agreement against a wife unless she had an opportunity to have counsel review it. Consequently, most courts will permit a wife to void a separation agreement unless she has had the opportunity to have a lawyer review it. The court often rules that uncounseled separation agreements are a product of fraud and/or over reaching by the husband.

9. What type of defenses can a person raise to try to set aside a separation agreement?

A person has many defenses that he/she can raise to try to set aside a separation agreement. One defense is inadequate consideration. A spouse can argue that the separation agreement is not a fair distribution of the marital assets. Another defense is that the separation agreement is unconscionable. This means that the terms of the separation agreement were manifestly unfair and dictated by a dominant spouse. An unconscionable separation agreement is one that no man or women in their senses would make, and which no fair or honest person would accept. A spouse who seeks to set aside a separation agreement on the grounds of unconscionabilty must prove that the agreement was the product of a bargaining disparity. A person must also prove that the terms of the separation agreement are unfair and that it was made under compulsion.

Another ground to void a separation agreement is the concept of duress. A spouse can allege that she was coerced into signing the separation agreement. Duress can be caused by psychological pressure or threats of violence. Many times husbands will use economic pressure to make a wife give up her rights to certain marital assets. Quite often husbands will withhold paying child support, alimony, or fail to pay the mortgage as a means of obtaining economic leverage. The husband will use this economic leverage to force his wife waive her interest in assets such as a family business or family property. Additionally, there are many cases wherein a husband will also use threats of physical violence to coerce a battered spouse to sign an unfair separation agreement. Many times, battered spouses become such emotional wrecks that their ability to think clearly is severely impaired. Devious husbands may use their economic leverage to coerce abused spouses to sign oppressive separation agreements.

10. I have signed a separation agreement because I relied on some bogus real estate appraisals that my husband gave to me. Now I realize that I made a terrible mistake by signing the separation agreement. Is there any way wherein I can set aside the separation agreement?

Another ground to set aside a separation agreement is based on the concept of mutual mistake of fact. Thus, if a spouse can prove that the separation was based on erroneous information, or on mistaken assumption(s) then these may be grounds to set aside a separation agreement. A common scenario wherein a mistake could void a separation agreement is when the parties rely on house appraisals. Many times a devious husband will obtain an erroneous or a deflated appraisal that is based on undervalued comparables, and that drastically lowers the value of the marital home. Quite often the wife ultimately realizes that she has made a terrible mistake by waiving her claim to the marital home, and by not receiving adequate compensation for it. If the wife can prove that the separation agreement was based on this erroneous appraisal of the home, then this may be a sufficient ground to void the separation agreement.

This type of scenario also frequently arises when the husband owns a family business. Quite often the husband will maintain that the family business has no value, and that the wife deserves no share of it. In many cases a husband will obtain a bogus appraisal that alleges that the business is worth much lower than its true value. Distressed wives often waive legitimate claims to family businesses because of psychological and physical threats made by husbands. If this situation arises, then often the doctrine of mutual mistake may enable a spouse to void a separation agreement.

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