Legal Separation and Divorce

What is the Difference and Whether to Choose One Over the Other

I get a lot of questions from people wanting to know what the difference is between a legal separation and divorce and whether they should choose one over the other.  This is an interesting topic and because family law is a notoriously sticky matter, it does warrant some thought and consideration before making a decision.  So let’s look at them both.

The main difference between the two is that a legal separation does not dissolve the marriage, leaving both spouses legally married and unable to remarry. In New Jersey, legal separation is referred to as “Divorce from Bed and Board”. In this case, the court makes a determination regarding all the aspects of the marriage including division of property, assets, debt, custody, visitation arrangements, and child and/or spousal support.

You might want to consider this type for many reasons: including uncertainty, religion, children, and necessity. The uncertainty on where your marriage might go can be a reason. You and your spouse may be going through some temporary hardships or disagreements and feel that to seek total dissolution of your marriage is too drastic. A temporary choice instead of a permanent one can be the right step if you are not completely certain about where you see your marriage going.

You may have a religious belief that may make the decision rather difficult. It could make more sense to seek something that does not intersect with your religious beliefs. If you also have a personal preference to simply separate from your spouse but intend to keep your relationship.

Having children, especially younger children can make an impact on your decision. Any type of change can affect your children and choosing the temporary remedy instead of a permanent one will ultimately lessen the difficulty imposed on them. Their well-beings are of a great concern and making a choice in their best interest is usually your focus as a parent.

In some states like New Jersey, before obtaining a “no fault” divorce, there is a requirement that you must first be separated for a period of 6 months of irreconcilable differences. Requiring this period really just makes choosing it much simpler, since you have to go through that period anyway.

A divorce is a complete legal dissolution of the marriage in which a court grants that both parties are no longer legally married. This may be an option if you are certain that you and your spouse are not going to reconcile and wish to end the union. It also may be an option if you or your spouse plan to date or marry another person. Some states find that any dating or relationship while separated from your spouse, may amount to an affair and/or adultery, which may result in a penalty or punishment.  Note though that this is not the case in New Jersey—unless your new significant other poses a danger to your children.

If you are having issues with your marriage and are not sure whether you should choose a legal separation or a divorce, contact an experienced family law attorney today to help you decide which would be the best choice for you. Someone well-versed in this area will be able to help you take the steps you need as well as be there for the whole process. For questions or to start the process, give me, attorney William C. Miller, a call at (732) 742-5556.