Two questions often asked by clients at their initial interview are “Do I need to be separated from my spouse for any length of time before I can file for divorce? and Can I obtain a legal separation from my spouse?” The short answer to both questions is no.
In New Jersey, there is no required term of separation necessary to file for divorce. In fact, spouses are often still residing together at the time one of them chooses to file for divorce, or retain an attorney, and they remain so throughout the process. While a physical separation remains a valid cause of action (reason) to file for divorce, it is not required. The majority of individuals who file for divorce do so with their reason being irreconcilable differences.
In New Jersey, there are nine causes of action or reasons which would entitle an individual to obtain a judgment of divorce from their spouse. Seven of these are fault-based and two are not. They are:
- Adultery
- Desertion
- Extreme Cruelty
- Separation
- Voluntary Addiction to Narcotic Drugs or Habitual Drunkenness
- Institutionalization for Mental Illness
- Imprisonment
- Deviant Sexual Conduct
- Irreconcilable Differences
Only one of the nine must be proven to a judge to enable a spouse to obtain a judgment of divorce. As that reason for divorce would have little if any economic impact on their future, parties will almost always seek to file under one of the no-fault provisions of the statute. In most cases, there is little to be gained economically or otherwise by raising the tension level by filing under one of the fault provisions. This is particularly so if the parties are residing together during the process.
The short answer to the second question about obtaining a legal separation from a spouse in New Jersey is also no. New Jersey provides no law that specifically references a legal separation for married individuals. Married couples are free to separate if one of them so chooses after weighing the economic and psychological impact on the family.