In the State of New Jersey, there is no such thing as “legal separation.” While parties may determine that it is in their best interests to physically separate prior to filing a complaint for divorce, the Court does not recognize the end of a marriage until a complaint for divorce is actually filed. While this may not be an issue in some divorce situations, this could create a problem when assets have continued to accrue in between the time that the parties have physically separated and the complaint for divorce is filed. While the party accruing assets may feel that the other party should not be entitled to a share of the assets because the parties were “separated,” the court may not view it that way. On the other side of the spectrum, if one separated party continues to incur liabilities after the separation, the other party may be on the hook for the liabilities as well. Additionally, the length of marriage for the purposes of alimony may be determined by the date of complaint and not the date of separation.
The Court typically views the date of the complaint as the end of the marriage and therefore the cut-off date for dividing assets and liabilities. While a separated party can argue for the cut-off date to be the date of separation instead, the Court will require incontrovertible evidence that the marriage ended prior to the filing of the complaint. This evidence may include an agreement between the parties to divide their assets as of a date prior to the date of the complaint. Given the complexities of this argument, parties should tread carefully when embarking on a “separation” and must take note that New Jersey does not recognize a separation without a complaint. Posted by Robyn E. Ross, Esq.