Separation of Husband and Wife Before a Complaint is Filed

Often one of the first questions a matrimonial attorney gets asked by clients contemplating a divorce is, “how do I obtain a legal separation?”  The answer is that in the State of New Jersey there is no such thing as a “legal separation”.  If one wishes to separate from their spouse, they simply move out.  Unlike many other states, New Jersey does not have a law on legal separation.  

In this State, one does not have to ask for the court’s permission or obtain a formal decree of any sort in order to be able to move out of the marital home and “officially” separate from his or her spouse.  Of course this freedom to separate is not a license to abandon all financial and domestic responsibilities

to one’s spouse and family.  In fact, it is recommended that a couple consult with individual attorneys and enter into an agreement that addresses the issues of temporary custody, support and property distribution in connection with their separation.  In New Jersey, this is possible without having to obtain a divorce.  If an agreement is unable to be reached, a dependant spouse may also seek child support and/or spousal support by filing a Complaint for Separate Maintenance.  

However, in a divorce setting, being able to separate at-will can also be extremely valuable.  This is especially true in circumstances where the litigants’ home environment is or becomes volatile, thereby hindering the amicable and expeditious settlement of their divorce action.  On one hand, there are cases in which a situation is volatile to begin with and that instability is what leads to the initiation of divorce proceedings.  In this instance, litigants are able to “separate” whenever necessary and are often already living in separate residences by the time they seek legal advice.  On the other hand, there are cases in which a couple will decide to divorce, one will move from the marital bedroom to a guest bedroom, they will attempt to go on living under the same roof for the pendency of their divorce litigation with the best of intentions, and then suddenly, all hell breaks loose.  In this situation, a couple in New Jersey may “separate” immediately without having to wait for the assistance of the court, although consulting with an attorney is highly recommended, as moving out without a parenting plan in place can change the status quo. 

Moving out of the marital home to avoid further conflict and “separating” before a final divorce settlement is reached should not negatively impact a litigant’s rights to custody, support or property distribution.  Let’s face it, divorce is contentious more often than not and living with “the enemy” is not always the most effective way to obtain a swift and harmonious resolution.  In fact, it can quickly lead to an irreparable breakdown in settlement negotiations and force a case into a lengthy and costly trial.  Giving one another “space” under such emotionally charged circumstances can make all the difference in obtaining a settlement of the issues that both parties can live with, and being able to get that “space” swiftly and without court intervention can be key in some cases.  But get that temporary arrangement into place to avoid the danger that a “temporary” solution will become the status quo that will, in turn, become the permanent arrangement.


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