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What are the differences between legal separation and divorce?
Answer:
What defines a couple as being legally separated is dependant upon the laws of each individual state. In general, a legal separation is decreed by a local court and recognizes that a couple that is still married, has physically separated and the spouses are living apart from each other. The court decree also regulates the mutual rights and liabilities of the couple while in this state of physical separation. What’s most important to keep in mind about legal separation is that the marriage is still valid, meaning that various aspects of the marriage are still legally in place. Among these are joint ownership of real property (including the automatic transfer to the surviving spouse in case of death), medical and/or funeral decision making rights, and the right to inherit the other’s property as the surviving spouse.
If the couple is living in a state such as New Jersey where becoming legally separated is not provided for under the law except in the event of a domestic violence action or an action for divorce from bed and board, they may choose to have a separation agreement drawn up which will define their mutual rights and liabilities. They could also decide to physically separate without any kind of written agreement at all. If the couple legally separates then later gets a divorce, a written separation agreement can sometimes become the basis for the eventual terms and conditions of the divorce.
In the case of a divorce, there is a change in the legal status of the couple as they relate to each other. After the divorce is finalized, each spouse gives up all future claims to the estate of the other spouse, except as allowed by the court or pursuant to the terms of the parties’ settlement agreement as to alimony or child support and property distribution. If the couple jointly owns any real property, a divorce will reduce the tenancy to what’s known as a “tenancy in common.” This means that in the case of death, a surviving former spouse no longer has any right to inherit the other half of the property. Instead, the property is either passed on to the decedent’s heirs at law governed by the laws of intestacy of the decedent’s state of residence, or under whatever terms are specified in their will.
How can I file an uncontested divorce?
Answer:
An uncontested divorce can be filed if there are no issues being contested by either party. This means that all issues, e.g. the house, financial assets and liabilities, custody of the children including visitation rights, future payments for alimony and child support, and everything else has been resolved satisfactorily between the spouses. How you reach settlement will depend on the couple. You can come to an agreement together, at the “kitchen table”, through mediation or through the use of collaborative attorneys. If you use the “Kitchen table” method or mediation, you should strongly consider having the agreement reviewed and possibly prepared by an attorney. It will be a court order if made a part of your divorce. Make sure the agreement is complete and you understand its legal consequences.
Should I seek help asking for changes to my divorce agreement?
Answer:
If you are looking to make a changes to your divorce agreement or decree, you will need to
petition the court or reach an resolution with your ex-spouse. If you were involved in litigation
before you may not want to return to a court setting. You may consider using a mediator or
collaborative attorneys. In either case it is critical to find a qualified attorney to assist you and help
you select the right process and secure a fair settlement.
Are there advantages to legal separation?
Answer:
A legal separation is normally done in cases where the spouses want to physically separate, but
have other reasons why they want or need to stay married. A couple may choose legal separation
instead of divorce because of religion (if their religion does not recognize divorce),or financial
reasons such as tax advantages, Social Security entitlement or the need for insurance or lower
cost of insurance, etc. In New Jersey, a legal separation is by court order or by contract of the
parties. Living apart does not necessarily constitute a legal separation even if it lasts for years.
There are some serious ramifications that need to be considered and are best addressed by a
formal written agreement.
After a divorce is finalized, can child custody or support agreements be altered?
Answer:
It is the unusual case where one or both of these provisions is never revisited. Children grow
and needs change. Parents change jobs, lose jobs or unfortunately become disabled. The
circumstances that come to be require parties to address the consequences. It is a wise parent
who realizes that these discussions are inevitable. Finding the right way to address these
changes is challenging. Seek the attorney who can counsel you and offer reasonable options
and alternatives. If all fails, litigation is available for a judge to make the final decision.
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