What Is Legal Separation?
Achieving a legal separation is generally viewed by the state of New Jersey as a means to an end. Most often, separating couples want to work towards some type of amicable divorce, or at least see what it will be like living separately. By law, the only difference between legal separation and divorce is the termination of a marriage, in that if you want to get a divorce, you have to legally separate from your spouse first. For many, legal separation is a test run for divorce, or another way to help spouses adjust to the terms of divorce without as much emotional turmoil.
While legal separation is a legal status with the same divorce implications, it is not legally required for any spouse who intends to divorce. If you have a partner who refuses to separate, you can still file for divorce.
A legal separation is accomplished through the same court process as divorce. In a legal separation, however, a judge can ratify a separation agreement. This agreement describes how you intend to manage your finances and responsibilities while separated.
In the court order for legal separation , you may include information about child custody agreements, parenting time, child support, spousal support, property distribution, and attorney fees. This is similar to a temporary relief motion.
Sometimes a couple is just irreconcilable. In such a case, the separation can be a formal forum for dividing property that was acquired during the marriage and other related legal issues. Separations typically last as long as it takes the couple to decide what they want to do.
Going through a formal separation as a precursor to divorce often helps arrange for a softer exit from the marriage. It will also make divorce simpler by getting everything in order. The parties know what needs to be and who is responsible for what.
Living apart gives both parties the chance to figure out if they want to be single or marry someone else. Some people stay in limbo for years, although having more time could lead to a better outcome.
A divorce ends the marriage, while in a legal separation, spouses are still legally married to each other. That can have advantages for one or both parties.
Why Hire a Lawyer for Legal Separation Cases?
Because of the issues that can often be involved in a legal separation, finding the right attorney to help you with the process is critical. Many times, the failure to meet legal separation standards can result in negative consequences and undue stress on the parties. A legal separation is a formal process, designed to permanently separate two parties, providing them with various legal protections lasting a lifetime if desired. Formalities such as spousal support, custody orders, and property division are necessary to ensure proper distribution of assets. So, when choosing an attorney for your legal separation, the attorney should be experienced and knowledgeable in all family law matters, especially legal separations. By hiring a knowledgeable attorney, a client may avoid costly judicial mistakes and future costly litigation.
Traits of an Effective Legal Separation Attorney
When selecting an attorney to guide you through the process of legal separation, several key qualities and areas of expertise should be taken into consideration. First and foremost, seek out a professional who is well-versed in the laws surrounding legal separation. Familiarity with the process, potential outcomes, and requirements of legal separation is essential for your lawyer to fully inform you and advocate for your best interests in negotiations.
Furthermore, experience in family law matters in general is crucial. Legal separation may involve complex emotional and financial negotiations, and a seasoned attorney will know how to approach such sensitive issues with care and expertise. They should also be experienced in court proceedings, in case you and your estranged spouse cannot reach an agreement. Knowing that your lawyer has a solid understanding of the intricacies of the legal system can provide peace of mind.
Another important quality to look for in a legal separation attorney is one who specializes in cases similar to yours. For example, if child custody issues are a major concern, finding an attorney who has a proven track record of successfully handling complex custody matters is vital. Specialization can make all the difference in achieving the ideal legal separation, especially when there are children and considerable assets involved.
Finally, make sure to select a legal separation attorney who possesses excellent communication skills. A legal separation can be a long and tricky process. Your lawyer should be capable of clearly communicating all matters pertaining to your case and should be open to answering questions. Your attorney should be someone who makes you feel at ease and clearly outlines the next steps to take as the process moves forward.
How a Lawyer Can Assist With Legal Separation
Although the divorce process is similar to the legal separation process in many ways, there are specific roles and opportunities for lawyers regarding legal separation that might be different from a divorce case. The legal separation process is intended to divide the parties’ lives so that they are no longer living together and, should they choose to, they can still revive the marriage later. After the physical separation of the parties – getting them out of the same house – there remains the issue of legal and financial separation that must be handled by an attorney to make certain that the process is above board and likely to hold up in a court down the road should the marriage end up moved forward again. An attorney can help handle all of the legal aspects of a separation, including asset division, child custody and support, and any domestic violence issues that may make it dangerous for a spouse to remain in the family home. It can be difficult for a couple dealing with these issues to negotiate them free and clear of their feelings towards one another. Traditional divorce mediation is often by contract worth the money because it enforces cooperation between the parties while legally separating them in a way that satisfies the requirements of the law.
Legal Separation: Questions To Ask Your Lawyer
Before making any rushed or emotional decision about which family lawyer you are going to hire, you should carefully interview the candidates being considered to represent you in your legal separation. You should sit down with the person and get to know them a little better because one of the essential ingredients to your divorce case is to have an attorney who is fully committed to getting the best possible legal outcome for you. Use these questions to see if the attorney and firm is made for you:
- What is your experience level representing clients in legal separation cases?
- Have you practiced family law for long?
- Are you a Certified Family Law Specialist?
- Who else at the firm will be helping me with my case? What are their qualifications?
- How much does it generally cost to hire you as my attorney?
- Will I be billed hourly , or charged a flat fee for your services?
- Do you accept legal aid clients?
- Can you help with spousal support, child support, financial disclosure, and all aspects of the legal separation process?
- Are you able to act as an agent of the court to avoid conflicts from coming to a family law judge?
- Do you often go to trial, or are you more of an arbitration and settlement type attorney?
- Will you work through family mediation or collaborative law to help keep our separation out of court?
- If litigation is needed, do you have experience filing petitions for a legal separation and arguing at hearings?
- What are your views on how our legal separation should proceed?
Legal Separation vs. Divorce — Which Is the Cheaper Option?
When it comes to legal separation, costs can vary depending on how amicable or contentious the relationship is between you and your spouse. Your costs will likely be fairly low if you and your spouse agree on the terms and do not expect the separation to turn into an adversarial divorce or a long-term legal battle. A judge will determine how much child support your spouse must pay over time, in addition to what visitation rights you and your ex-spouse will maintain with your children. You can also negotiate a settlement with your spouse without going through the entire litigation process. However, if the two of you cannot come to terms with terms, you may be spending time in court and in meetings with your attorneys. This scenario will increase your fees, which can be beneficial for your spouse if he or she does more than his or her fair share of spousal support payments.
Your attorney can help make the process more affordable, as the best attorney will work with you to get your legal separation settled in as few hours as possible. You will not want an attorney who bills you for conversing via multiple email or phone calls when one 10-minute conversation will suffice. You will also want to avoid a divorce that drags on in court and forces you both to miss time from work and encounter expenses such as having to hire sitters or nannies to care for your children or pay for expensive traveling. This scenario turns a legal separation into a costly process.
An attorney can often negotiate with your spouse to come to a workable agreement that makes both of you happy and fulfills the needs of your children. In turn, both of you will spend less money on legal fees and court costs and file fewer motions and applications with the courts. If you have a child with special needs, your budget will determine whether you proceed with a legal separation or a full-on divorce. If you and your spouse are unable to communicate now, you will have the same problem after divorce, and your child will be the one who suffers the most. Again, it is important to point out that you and your spouse agree to move forward with the process before filing for legal separation or divorce. You will both need to agree on the process that takes place, whether it occurs in court or through negotiation.
How To Prepare for Your First Meeting With a Legal Separation Lawyer
You’ve done the research, consulted with friends and family, and have even spoken with a few others professionals who these experts suggested. You are ready to choose an attorney. In fact, you may very well have already chosen the right legal separation attorney for you. But there is still time for due diligence. The next step in the process is preparing for your initial consultation with the legal separation attorney of your choice. One of the best things you can do prior to the meeting is to gather together all of the documents related to your marital finances. Having these in order before your legal separation consultation will be helpful. The attorney will also suggest that you bring the following to the meeting as well: At the legal separation consultation, the attorney will ask you a number of questions. These may include: In addition to being emotionally prepared for the meeting, it’s absolutely vital that you are physically and mentally up for the meeting as well. Expect to possibly meet with your attorney for 2 to 4 hours. If you find the thought of such a meeting exhausting, attempt to get an extra good night’s sleep the evening prior to the consultation. If you have a hard time sleeping, try to take a sleeping aide (prescription or over-the-counter) the night before. The problem is that the more tired you are, the more you will have difficulty digesting the information contained in the meeting itself and may also have a hard time recalling important details that will later help you make your decision about whether to hire that legal separation attorney.
How a Lawyer Can Help Prevent a Divorce
The most common mistake that couples seeking legal separation make involves emotional issues. In the end analysis, a legal separation is often much worse than divorce for the parties who cannot move on. Once a legal separation ends, there is no requirement to remain separated; the parties can be divorced just as quickly and easily as they can be separated. An attorney can assist in avoiding the emotional pitfalls by explaining the consequences of requesting a legal separation rather than a divorce.
One method employed by attorneys is to explain when a legal separation would actually benefit a person financially. Some courts impose waiting periods before a divorce can be granted, so if a party files a separation action expecting a divorce shortly thereafter, they could wind up waiting many months longer than if they had simply filed for a divorce.
Another mistake that people make when filing for legal separation is failing to get an attorney involved early in the proceedings. Many people believe that they will have more negotiating room if they file for a legal separation, but in reality, filing for a legal separation usually has the opposite result. By the time the separation is filed, most people have breached any trust they had in the marriage and do not negotiate freely any longer, fearing that the other spouse will take advantage of them. Instead of moving on, the couple finds themselves spinning their wheels as one or both parties try to figure out what to do and find some settlement terms that they can live with.
One of the things about legal separation that frustrates many people is that the parties do not have a large room for negotiation. When a couple files for divorce , they have some negotiating room which is bounded only by the will of the divorce court and their ability to implement high quality arrangements for child custody and child support. When a couple files for legal separation, however, they cannot fully negotiate issues regarding anything but property division and maintenance. The reason for this is that other issues will be interpreted by the court as granting rights to the parties through a legal separation rather than being resolved through a divorce. An attorney can explain the consequences of a legal separation versus a divorce, and will work hard to resolve differences outside of the trial area so that the lives of you and your spouse can move on.
It is critical that a party do what they can to open up the lines of communication with the spouse before filing for legal separation. There are several reasons for this. For one thing, it signals a willingness to get things behind them. One big factor that weighs against divorcing parties is if they do not try to resolve their differences before the court date. Another is that it demonstrates the willingness of the parties to work together to develop a good settlement in their cases. Finally, it allows for the assigning of responsibility. The party who filed the legal separation petition is clearly telling the other party that they want the marriage to end. The other party may not be of the same opinion even if they believe it is the best thing for them. By declaring that separation, the first party is clearly stating their determination. In situations where the filing spouse does not want the separation to continue in the first place, they will likely negotiate quickly and easily to get the case resolved.