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Helpful Tips on Separation Agreements
I can't stand my husband anymore! However, I am not sure that I want to get a divorce. Can I file for a legal separation in New Jersey?
Unfortunately, there is no such type of case that provides for a legal separation in New Jersey. However, if you and your husband are not ready to "pack it in" and file for divorce then you can enter into a separation agreement. A separation agreement can protect you financially and give you precious time to live away from your husband. There is a major drawback to having a separation agreement; if you have a devious spouse then he can hide and dissipate the marital assets during the separation period. Therefore, it is imperative that the marital assets, credit card bills, and home equity lines of credit be frozen during the separation period.
What is a separation agreement?
A separation agreement is a legally binding-written contract/agreement between you and your spouse. This agreement should govern your financial issues from the period of time when you separate until you are ready or able to file for divorce. The agreement can address a very short separation. Meanwhile, the separation agreement could also be designed for a very long separation that could last for many years. I have handled cases wherein some married couples have been separated for decades. A very long legal separation is not legally advisable. If the parties are separated then the cut off date for equitable distribution is the time when the divorce complaint is filed. Therefore, your spouse could get a major share of your assets that were only accumulated during the separation period. Nonetheless, for a multitude of reasons some separations tend to last for a very long time.
A separation agreement is basically a contract that outlines the terms of your separation. The agreement is the result of hard fought and emotional meetings, draining negotiations, and compromises between you and your spouse. The separation agreement should resolve issues that relate to child custody, parenting time, child support, spousal support, payment of medical expenses, maintaining health insurance coverage, maintaining automobile insurance coverage, maintaining life insurance coverage, who will pay the mortgage, who will pay the credit card bills, etc. Additionally, a separation agreement should also cover who should pay the children's college tuition if applicable. The list is endless. However, the basic premise of a separation agreement is that it is framework to keep the family "afloat" while the spouses try to sort out their lives. In summary, the more comprehensive that the separation agreement is then the better it will serve your family. The more detailed that the separation agreement then there will be less room for disagreement. At least this is the game plan. Sometimes separation agreements work "like a charm," and sometimes the marriage unravels into a mess. Ultimately, you and your spouse will determine whether a separation agreement is worthwhile to pursue and to comply with.
Why enter into a separation agreement instead of filing for divorce?
In these terrible financial times even if you and your spouse both recognize that you can't stand each other anymore, it still might not be the right time to file for divorce. You might need some more time to emotionally come to grips with the idea of becoming a divorced person. Moreover, your finances might be so intertwined with your spouse that it might be impossible to get divorced now. In my experience, a divorce may solve some of your personal problems. However, a divorce can very well create many more financial problems that will substantially reduce the quality of your life. Be forewarned, getting a divorce in many instances will not make you happier. In many cases, you must sell your home if you get a divorce, and you simply will not have as much disposable income to live a comfortable life.
A separation agreement can establish any child support and spousal support during this new phase in your life. A separation agreement can also provide you with some certainty that you need to survive after you separate. The greatest benefit that a separation agreement can provide is that it can give you some peace of mind. The separation agreement could effectuate a "freeze" on all of your assets and debts that were acquired during your marriage. Moreover, if your separation agreement incorporates non-dissipation language, then your spouse can't liquidate your bank accounts or any other assets that were acquired during the marriage. Finally, your separation agreement can also protect you if your spouse racks up massive credit card debt during the separation, but then tries to argue that it is marital debt.
Do I have to file a case in the family court to obtain a separation agreement?
You don't have to go to the family court and file a separation agreement. There are many affordable family lawyers in New Jersey who can draft a well prepared separation agreement for you at an affordable fee. Not all lawyers charge $300 per hour. You will have to provide your lawyer with your tax returns, pay stubs, credit card bills, mortgage bills, real estate taxes, and your college tuition bills for your children if you have any. The more comprehensive and thought out that your separation agreement is then the more effective it will be.
It is important to emphasize that you should not equitably distribute your marital assets in a separation agreement. I have had cases wherein a husband who was feeling guilty because he cheated on his wife, signed over the marital home to his wife. Ultimately, the husband did not get a penny from the home. I was retained by the husband in the divorce case. I tried in vain to have the separation agreement declared void. However, I was unsuccessful, and the court enforced the original separation agreement. As a result, the wife was able to retain full ownership of the marital home, and the husband did not get a dime from the home. Therefore, any separation agreement should only address keeping the family "afloat" during the separation period. No "hard core" decisions as to how marital assets should be equitably distributed should be made in the separation agreement. If you do make a rash decision and "give away the store" in your separation agreement, this haphazard decision may be irreversible and could cause you financial ruin.
New Jersey is an equitable distribution state, meaning that the division of property in a divorce is to be done fairly, not necessarily equally. The court can take into consideration any factor it deems relevant when dividing property, but it must consider certain factors, such as how long the couple was married and the age and health of both spouses, the income or property brought to the marriage by each spouse, the standard of living that was achieved during the marriage, and the extent to which one spouse may have deferred career goals, among others.
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