Married couples in New Jersey who wish to separate but are not ready to divorce can take advantage of a formal court process known as “divorce from bed and board” (also called “limited divorce“), or they can choose to handle their legal separation out of court. New Jersey also has a court procedure called “legal separation” for civil union partners that is virtually identical to divorce from bed and board.
Deciding which option to choose can be complicated. You may not need a formal court process, but it is always important to take steps to protect your finances and clarify matters relating to any property or children you and your spouse may have together. If you are struggling with such decisions, you need the advice of an experienced attorney who understands the distinctions between available legal alternatives. At Weinberger Divorce & Family Law Group LLC, our New Jersey divorce attorneys appreciate how confusing this can be.
Divorce from bed and board was popular in the past when “divorce from the bonds of matrimony” (sometimes called absolute divorce or final divorce) carried negative connotations. Although times have changed, there are still a few reasons people may prefer a limited divorce over an absolute divorce. Some have religious objections to divorce. Others fear the economic consequences of divorce and wonder if there is any way to alleviate these. If your qualms regarding divorce relate to your religious beliefs, talk to a person of authority at your house of worship. The legal considerations may be far different from the religious or spiritual considerations.
Understanding the Bed and Board Process in New Jersey
Just as with any action for divorce, a spouse seeking a divorce from bed and board in New Jersey begins by filing a complaint in family court. All of the fault or no-fault grounds available for absolute divorce are also available in divorce from bed and board. There are some major differences between the two procedures, however. There are also some major differences between a divorce from bed and board and a New Jersey legal separation.
Differences between Divorce from Bed and Board and Absolute Divorce
- In an action for divorce from bed and board, both spouses must agree that they wish to have the court issue a judgment of divorce from bed and board. In an absolute divorce, on the other hand, a court can order the divorce even if one spouse objects.
- After a divorce from bed and board a couple is still legally married. Unless one of them applies in court to convert the limited divorce into a final divorce, neither is free to remarry.
- Unlike a judgment of final divorce, couples can revoke a divorce from bed and board if they decide to reconcile.
- In a divorce from bed and board, the court can order division of assets and debts as well as child support and alimony or spousal support, just as in a final divorce. Because of the way divorce from bed and board affects certain types of property and certain benefit rights, however, it can be easier for a couple to divide some assets and debts while continuing to jointly own others. This is further explained below in “Financial Consequences of Divorce from Bed and Board.”
Differences between Divorce from Bed and Board and New Jersey Legal Separation
- New Jersey married couples—Legal separation is not a formal court process for married couples in New Jersey. The term “legal separation” has no precise meaning when applied to a married couple, although it often used to mean that the couple is living apart and has entered into a formal separation agreement controlling property, finances, and parenting during the separation period. Divorce from bed and board, on the other hand, refers to a specific legal court process.
- New Jersey civil union couples—Legal separation is the court procedure a civil union couple would use in place of the divorce from bed and board procedure. This means that “legal separation” has a completely different meaning as applied to a civil union. Just like a married couple, a civil union couple can choose to live separately with or without a separation agreement, but if they choose to formalize the separation with a court process, they would choose legal separation. Civil union couples considering separation may be faced with additional issues due to numerous conflicts between state and federal laws, and must be sure to consult an attorney regarding the potential effects of such conflicts on any legal separation.
Pros and Cons of Divorce from Bed and Board
In most cases, couples can keep more control over their separation process by working out a legal separation agreement instead of going through a court process. However, unlike orders that become part of the judgment in a divorce from bed and board, the separation agreement is enforceable as a contract between the spouses only, and not as a court order.
While it may be tempting for couples who have not made a final decision regarding divorce to view a divorce from bed and board as a good intermediate step, it is not always the best choice, as it carries very specific financial consequences. These are some of the economic considerations:
Financial Consequences of Divorce from Bed and Board
- Health Insurance—More couples have considered divorce from bed and board recently because, unlike a final divorce, the process often allows a dependent spouse to maintain health insurance through a working spouse’s employment. Due to rapidly rising costs, dependent spouses often find it challenging to obtain affordable individual coverage after divorce. Continued coverage under COBRA (The Consolidated Omnibus Budget Reconciliation Act) is available for some, but COBRA only applies to businesses with at least 20 employees, and coverage for a former spouse is often expensive and is generally available for no more than 36 months following a judgment of divorce. In most cases, a dependent spouse can continue existing coverage under an employed spouse’s policy following a divorce from bed and board. If a couple is ready to divorce but a dependent spouse is anticipating problems finding a job with health benefits, or is within a few years of Medicare eligibility, the couple can agree to go through a limited divorce and convert it to a complete divorce in the future. Do not automatically assume, however, that this will work for you. Be sure to review your health plan and consult an attorney if you have questions.
- Other Benefit Rights—The effect of a divorce from bed and board on different types of benefits varies. Under many pension plans, survivor benefits remain intact. Many federal benefits, including social security retirement benefits, are also unaffected. Couples considering this option should carefully review the provisions of any applicable benefit programs. If provisions are unclear, ask an attorney for advice.
- Wills and Intestate Rights—Like final divorce, a divorce from bed and board ends the rights of spouses to inherit property from each other or to claim an elective share against each other’s estates. It also generally voids the provisions of any pre-existing wills leaving property to the other spouse. You will both need to update your estate planning documents in light of the limited divorce.
- Property and Tax Effects—Divorce from bed and board affects marital property the same way as a complete divorce; tenancies by the entirety automatically convert to tenancies in common, and a couple ceases to acquire new marital property. A possible beneficial tax effect is that the IRS time limits on property transfers between spouses after divorce may not apply to divorce from bed and board, allowing a couple to continue joint ownership of former marital property indefinitely without incurring negative tax consequences. The IRS generally treats couples going through divorce from bed and board as legally separated rather than either married or divorced. For more information on how the process can affect your tax status and how to file your tax forms both during and after the judgment, consult a tax professional.
If you are considering divorce from bed and board or legal separation, our experienced attorneys can help you understand your options and decide how best to proceed.
Talk to us: call (888) 888-0919 to schedule an initial consultation.