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Is There A Less Than Absolute Way to End a Marriage?

On occasion someone will ask me about the possibility of a way to end a marital relationship short of a divorce.  for instance ,is there a way to legally or formally separate?  In New Jersey, married couples do separate, but there is not a law providing for a formal, legal separation per se.   New Jersey, however, does have a provision for a “limited divorce”, which is called a “divorce from bed and board”, which is the State ‘s closest version of legal separation, as opposed to an “absolute divorce”, which permanently ends the marriage, and is what most of us think of when we hear the term “divorce”.

 N.J.S.A. 2A:34-3(a) states that “Divorce from bed and board may be adjudged for the same causes as divorce from the bonds of matrimony whenever both parties petition or join in requesting such relief and they or either of them present sufficient proof of such cause or causes to warrant the entry of a judgment of divorce from the bonds of matrimony, provided further that in the case of a reconciliation thereafter the parties may apply for a revocation or suspension of the judgment, and provided further that the granting of a bed and board divorce shall in no way prejudice either party from thereafter applying to the court for a conversion of said divorce to a divorce from the bonds of matrimony, which application shall be granted as a matter of right.”   N.J.S.A. 2A:34-6 provides that “For and during the time that any judgment for divorce from bed and board or legal separation from a partner in a civil union couple shall remain in force and effect all property rights of the parties shall be as though a judgment of absolute divorce or dissolution had been entered.  In any property transaction by either of the parties in such status the fact of the existence of such judgment shall be distinctly recited and reference to the public record thereof shall be clearly set forth.”

What are the consequences of a divorce from bed and board as opposed to obtaining an absolute divorce?    Both parties must consent to a divorce from bed and board; it cannot be imposed on one spouse.  While issues of custody, child support, alimony and equitable distribution may be awarded or resolved in a divorce from bed and board, it is not an absolute divorce. As pointed out by the Appellate Division, a judgment of divorce from bed and board is not a “true divorce” because it does not dissolve the bonds of matrimony, and “merely decrees a judicial separation.”   Mueller v. Mueller, 95 N.J. Super. 244, 247 (App. Div. 1967).   While divorced from bed and board, the parties may acquire property free of the rights that the other party would have in that property if they were not divorced.  Pipitone v. Pipitone, A-0449-08T3, 2009 WL 3429561 ( App. Div. Oct. 27, 2009).   After a divorce from bed and board, neither party can remarry as as the parties are still legally married.   If one party wishes to remarry an additional application must be made for an absolute divorce, or an application to convert the divorce from bed and board into an absolute divorce.   That also raises the specter of any settlement agreeing being reopened.  DeAngelis v. DeAngelis, 122 N.J. Super. 48, (App. Div. 1973).  Also, even though technically still legally married, if one of the spouses dies, the surviving spouse cannot qualify for the right of election from the estate of the deceased spouse.   Jackson v. .Neptune, 15 N.J. Tax 498(1996);    N.J.S.A. 3B:8-1.   While the parties are not free to remarry, parties who obtain a divorce from bed and board cannot file a joint income tax return because they are not considered “married” according to section 6103 of the Internal Revenue Code.  Weinkrantz v. Weinkrantz, 129 N.J. Super. 28 (App. Div. 1974).   Also, the marital communication privilege in N.J.R.E. 509 protects communications between spouses unless the communication occurs when they are “living separate and apart under a divorce from bed and board.”  State v. Mauti, 416 N.J. Super. 178, 193, ( App. Div. 2010).   A divorce from bed and board does not constitute a divorce for purposes of a name change.  Leggio v. Leggio, 436 N.J. Super.  641, 643 (Ch. Div. 2014).
 Why might litigants desire a divorce from bed and board rather than a final or absolute divorce?  The most common reason often relates to medical reasons.  Spouses who are absolutely divorced cannot remain on the same health insurance policy.   Either due to some medical condition or the cost of the insurance, parties might not want to be married anymore but might desire to remain married so that one of the spouses can remain on the other’s health insurance.  Since the parties are not formally divorced, the parties may be able to remain on the same family/spouse health insurance policy.    This is a risky option, however, because it cannot be assumed that every insurance carrier allows or will provide insurance coverage to both spouses after a divorce from bed and board.  An insurance carrier may consider a divorce from bed and board to have the same effect as an absolute divorce.  Litigants do not want to later be accused of insurance fraud, or incur expensive medical procedures in the incorrect belief that the carrier will not investigate and reject the claim based on the spouses being divorced from bed and board only.
Obviously such issues of separation and divorce involve extensive complexity.  As such, to answer and resolve such questions the law firm of James P. Yudes, A Professional Corporation is available to serve you.