How long should you be separated before divorcing in New Jersey? When does a separation become too long?
If you are in a long separation, these are important questions to ask. There are sometimes good reasons to remain separated without divorce for some time, but unfortunately, 87% of separations still end in divorce. In most cases, it is better to divorce quickly and efficiently. At Petrelli Previtera, we can help you understand why a long separation is a bad idea and how long to maintain a separation if you seem to have a good reason to remain married while apart.
Why Long Separations Occur
If you are considering or already in a long separation, we know there are many good reasons for this. You are certainly not alone. Many people separate from their spouse, then lose the urgency to divorce after personal space and independence is achieved. You may have a specific reason to stay legally married which will need to be resolved before you can safely divorce.
Here are the most common reasons why people choose to separate and put off divorce.
- Health Insurance
- When one spouse has much better health insurance than the other, and they remain married to maintain coverage.
- Life insurance and other spousal benefits also fall into this category.
- Tax Benefits
- Married couples can file joint taxes and do get extra tax benefits or deduction limits.
- Time to Plan the Divorce
- A long separation is sometimes reasonable if the time is spent preparing a more thorough and agreeable divorce.
- Easing the Transition
- It may take time to fully separate households, especially if you are easing children into new co-parenting lifestyle.
- Tied Up Properties
- Spouses may hesitate to divorce if it would require selling a property that would be difficult to replace.
- Time for Reflection and to Consider Reconciliation
- If both spouses are considering the possibility of reconciliation, separation may extend into extra innings.
- Religious or Cultural Considerations
- Many people do not feel safe divorcing due to pressure from their family, religion, or culture.
- The Urgency to Divorce is Gone
- After separation, it may be tempting to dodge the effort or expense of finishing the divorce.
Why Long Separations Are Not Ideal
What you need to know is that there are serious downsides to a long separation. Most people don’t realize that they are putting themselves at risk, especially if your separation becomes something that extends for years to the point where you almost forget that you are still legally married. Why is a long separation a bad idea? Let’s take a look at the risks.
Delaying the Asset Split
Divorce in New Jersey, and most states, tries to give an even share of the marital assets to each person. The reasoning is that teamwork contributed to any wealth, property, or assets accumulated, and therefore, the property will be evenly split. However, if you have been separated, finally getting the divorce if you want to remarry or sever ties will result in an asset split based on the time of the divorce. If one spouse has built up a savings account, bought property, or contributed significantly to their retirement account and the other spouse hasn’t, they risk an unfair financial and asset split at the time of divorce.
Risk of Financial Health Impact
You are living separately from your spouse, but one day your spouse creates a large amount of debt. Because you are married, that debt is also legally yours. It can show up on your credit report and creditors may be able to come after you, even if you haven’t seen your estranged spouse in many years.
Lingering Spousal Rights
You will have special privileges regarding your accounts, medical care, and legal documents. They could make decisions for you if you were in the hospital or receive a large portion of inheritance if you were to die without a will. Your spouse may also be able to access financial accounts or legal records on the simple fact that they are your legal spouse.
Unclear Child Custody Rules
If you and your spouse are raising children together and they suddenly stop making money or want to keep you away from the kids, separation without a custody agreement leaves you in a dangerous and difficult situation.
If your spouse moves away and falls out of touch, it can be much more difficult to complete the divorce should you decide you want legal independence. It is possible to divorce in absentia, but it is much more difficult.
Emotional Strain & Uncertainty
Living in a state of long-term or extended separation can be challenging, especially when there are disagreements over property and child custody. It can cause uncertainty for the children involved and prevent each party from moving on and healing. This situation can be emotionally draining and hinder the overall well-being of both individuals.
Delayed divorce can coincide with postponing necessary assessments and adjustments for financial health. The finality of divorce proceedings often allows individuals to assess their lives in various aspects and set goals for personal growth. In addition to the previously mentioned financial burdens, extended separation can hinder financial and career decisions that greatly influence one’s financial well-being. This may involve establishing credit, creating a budget, saving for the future, and investing to ensure financial stability. Long-term separation can hinder families’ ability to learn how to effectively manage expenses as individuals. It can also impede career aspirations by limiting growth opportunities and additional income sources. If divorce is not a reality, individuals may neglect to thoroughly examine their long-term financial needs and postpone reassessing and adjusting their retirement planning, as is often done in response to divorce.
Impact on Children
Living in a state of long-term or extended separation can be challenging for children, especially when divorce is involved. They may find themselves caught in the middle of their parents’ conflicts, leading to feelings of guilt, anger, or confusion.
Complicates Future Relationships
Lastly, still being married years after separating can complicate any future romantic relationships you (or they) may have. If you find someone new and want to get married, you will need to divorce first. If your new partner’s family finds out you are still married, they may object with some good reason. If you have children with someone else, they will share an inheritance with your legal spouse. In other words, it’s just complicated.
How to Resolve or Avoid a Long Separation in New Jersey
If you are in a long separation or your spouse has proposed a long separation, you have options. You can resolve these potential problems with a few practical steps.
Formalizing the Separation with a Legal Separation Agreement
If you still have a strong reason to stay married, such as cultural restrictions or health reasons, our firm often recommends to clients consider a separation agreement. A separation agreement has many protections, but you can remain legally married. Some couples who must live apart for a year or more will sometimes draft a separation agreement due to the protections it affords and the clarity it can provide for overlapping finances and child rearing.
Whether you want to reconcile, you can’t divorce, or you aren’t ready to divorce, getting a separation agreement can allow you to separate some aspects of your finances and work out a child custody agreement, which will keep your separate households safe and/or make divorce easier should you get one in the future.
Defining the Separation Agreement and Items to Consider
A separation agreement is a contractual understanding between two parties which outlines the terms of their separation. It’s a legally binding document once it is signed and notarized, functioning similarly to a legal separation in many respects. The separation agreement acts as a protective shield, offering clarity and protection to both parties involved. This contract typically comprises the following terms:
- Custody and Child Support: This clause addresses who will have custody of the children and the financial support that the non-custodial parent will provide for the children’s upbringing.
- Visitation Schedules: The separation agreement should clearly define the visitation rights of the non-custodial parent, offering a detailed schedule.
- Debt Responsibilities: Financial obligations are a critical component of the separation agreement. It should stipulate who is responsible for paying off individual or joint debts acquired during the marriage.
- Property Division: This section of the agreement clearly outlines how marital assets will be divided among the parties.
- Spousal Support: Also known as alimony, this term determines if, how much, and for how long one spouse will financially support the other following the separation.
Crafting a comprehensive and fair separation agreement is vital to avoiding future conflicts and providing both parties with a clear understanding of their rights and obligations during the separation.
Completing Your New Jersey Divorce
You can also take steps to move forward to secure a New Jersey divorce. Long separations increase in risk over time. If you have successfully severed your households, it will be easier to get a divorce because you have already split most assets and may even have a working – if not formalized – co-parenting routine ready to build into a custody agreement.
18-Month Separation Divorce
If you have been separated for 18 months or more, you can file for a divorce based on the grounds of separation. This will also make it easier to get divorced if your spouse is not cooperative. But you should also know that a simple “no fault” divorce based on “irreconcilable differences” only takes 6 months.
Avoiding or Formalizing a Long Separation with Petrelli Previtera, Family Law
You don’t have to remain in divorce limbo forever. If you are separated and want to stay that way, Petrelli Previtera, Family Law can help you secure a fair and functional legal separation. If you are separated and want to complete your divorce before the situation becomes untenable, we will walk you and your spouse through the process of building your New Jersey separation into a divorce that helps both parties achieve complete independence without stress.
Contact us today to consult on your unique situation and discover the best path to resolution.