When a couple begins to talk about reconciling the differences in their marriage through divorce, family lawyers in New Jersey will often recommend that the couple draft a separation agreement as a first step, to make sure that a permanent separation will be best for them. A separation agreement is a contract made between the two spouses, and it outlines the terms of the separation, covering issues of child custody, child support and alimony, and the divisions of property and debt.
In New Jersey, a separation agreement is only valid when it has been put into writing, signed by both spouses, and notarized. This makes the separation legal in the eyes of the state, and often gives couples a good indication of how long-term separation will benefit them. The contract established at separation can provide a solid framework should the couple ultimately decide to dissolve their marriage.
In a separation agreement, the couple should consider all aspects of their lives together—shared responsibilities, possessions, and obligations such as debt and loans. The agreement should include terms for paying off the mortgages, credit card bills, tax returns, car payments, and household expenses. While the couple can draft their agreement without legal consultation or time in court, a New Jersey family lawyer can help ensure that nothing is overlooked in the division of assets.
In a marriage with an extended family, sometimes a trial separation is an introductory way to help children deal with their parents’ eventual divorce. Working out a fair child custody system in a separation agreement can keep parents from putting too much burden of choice on their children, and ensure that both parties have a chance to try out new systems before going to court to determine custody.
If one spouse does not agree with the terms of the separation agreement, either during its negotiations or after it has been established, courts in New Jersey can determine whether the contract was valid based on several criteria. The agreement can be declared unfair, or unequal in its distribution of assets, or unconscionable—meaning no reasonable person could accept the outlined demands. An agreement made under duress or coercion is considered invalid by the state.
The agreement can also be set aside by the state courts if a mistake was made in determining the couple’s shared wealth and assets. If one spouse can prove that their separation agreement was based on incorrect calculations or assumptions of wealth or debt, a judge can order the couple to set aside the agreement, or make a new one. These erroneous conclusions often occur when couples rely on a house appraisal to determine wealth.
In New Jersey, the separation agreement is different from the “divorce from bed and board” process. The “bed and board” separation indicates that a couple is still legally married, but separated economically, which each party responsible for his or her own person and expenses. In bed and board cases, alimony is typically not awarded, and a judge determines how the assets are distributed.
At New Jersey law firm Helmer, Conley, and Kasselman, PA, our family lawyers work with couples who are considering divorce to determine the best course of action for them and their families.