A legal separation is often the first step a couple takes when they’re planning to divorce.There are no legal formalities required for a separation.The couple simply decides to live apart (in separate residences) with no intent of getting back together.
When a couple separates, generally, their debts and property become separate as well.For example, one spouse will generally not be responsible for the other spouse’s new credit card debts after separation, unless they’ve agreed otherwise.A written separation agreement is highly recommended.
Spouses must also protect their jointly owned marital assets during a separation.For example, one spouse may not sell the family home without the other spouse’s consent.
A separation agreement is a binding contract between a wife and husband (or same-sex spouses) that states the terms under which they will live separately.It generally covers only the period between when a couple separates and when they are divorced, but a couple can also agree on terms that will apply once the divorce is granted.
The agreement can govern things like:
- spousal support (alimony),
- child support,
- child custody,
- child care expenses,
- maintenance of health insurance,
- medical bills,
- household expenses,
- mortgage or rent expenses,
- property taxes,
- credit card bills,
- car payments,
- who stays in the marital home,
- who files tax returns,
- how tax bills or refunds are to be divided, and
- division of the couple’s property.
A separation agreement can cover all of the legal issues that would otherwise be decided by a judge granting a divorce.
There’s no need to go to court to create a separation agreement.Either spouse can write one up and present it to the other spouse for signature, or they can work on a draft together.Spouses can also work with third parties such as family lawyers and divorce mediators.
Although it’s not necessary to have a lawyer involved in drafting a separation agreement, it’s a very good idea.An experienced New Jersey family lawyer can anticipate and advise a couple on all the issues a separation agreement can address.A family lawyer can also advise about what a court will likely order if the spouses are unable to agree.
A separation agreement can be set aside for various reasons, such as:
- the agreement provides for an unfair distribution of the couple’s assets;
- the agreement is unconscionable (so unfair that no fair or honest person would accept it) because the parties didn’t have equal bargaining power;
- the agreement was made under duress (one spouse was forced into signing, by violence, psychological pressure, economic pressure, threats, blackmail, etc.);
- both parties were mistaken about material facts (such as the value of their property or family business) when they made the agreement.
However, a separation agreement will not be set aside simply because one spouse felt guilty or made a too-hasty decision about giving up his or her rights.It’s important to review a proposed separation agreement carefully.It’s highly advisable to seek the opinion of an experienced New Jersey family lawyer before signing.
If you have questions about separation agreements in New Jersey, or need help preparing one, please contact our office to arrange an appointment with an experienced Bergen County family law attorney at Chase & Chase.