What is a Legal Separation?
A legal separation occurs when the parties involved are still married but living apart. There really is nothing called “Legal Separation” in New Jersey. In order for it to be legally recognized, they must have a document written up to confirm the rights and duties expected of them in regards to things such as child custody, child support, alimony, apportionment of debt, and division of property and assets. The document is typically a Marital Settlement Agreement that will eventually be incorporated into a Judgment of Divorce.
In order for the legal separation agreement to be valid, both parties must sign the document and have it notarized. Most legal separation cases precede a divorce but since a legal separation can largely be dealt with without the court’s approval, many choose entering into a Marital Settlement Agreement prior to filing for divorce to speed up the divorce process when it arises.
What Should be Included in a Legal Separation Agreement or Marital Settlement Agreement?
The agreement is essentially a contract that is agreed upon by both partners in a relationship. Some of the key elements that should be focused on in a separation agreement are as follows:
- Spousal support, or Alimony
- Child support
- Child custody and parenting time
- Medical bills and health insurance
- Household expenses
- Mortgage and property tax
- Car payments
- Credit cards
- Payment and filing of tax returns
Does a Legal Separation Agreement Require a Court Appearance?
Not at first. The reason many couples choose to go with legal separation instead of jumping straight into a divorce is because it is much easier and in many ways accomplishes the same goal. Since these agreements usually have complex financial and custody issues involved, it is best if both parties have their own attorneys involved, even if they are able to come to major agreement on the basic terms before they go to a lawyer.
Under What Circumstances can a Separation Agreement be Set Aside?
There are a number of arguments that can be made for one partner to set aside a separation agreement. Here are just a few that commonly come up:
- There was not a full disclosure of assets and/or liabilities by the other party
- The parties were not represented by counsel and did not understand all of the legal ramifications of entering into the agreement
- The original agreement does not fairly distribute assets
- The agreement was made under duress
- The agreement was signed under coercion
- The parties were unaware of their legal rights
If you feel like any of these apply to your situation, you may have grounds for invalidating a separation agreement, or better yet, before you try to prepare an agreement yourself, call an attorney to assist you.
Contact a Legal Separation Attorney
Whether you would like to draw up a Marital Settle Agreement before you file for divorce, or already have an agreement and would like to change or invalidate it, contact Himelman & Himelman today to set up a consultation.