The issue of legal separation has come up here before, but I just got into a somewhat heated discussion on the Avvo "Q&A boards" and wasted too much time on a debate with an attorney who dabbles in Family Law (below, if anyone is interested). I am really curious: Why do some attorneys say "there's no such thing as legal separation in New Jersey"?
It's always been an "of course" issue as an aspect of it was briefed when I was a law clerk 20 years ago and I've thus always known about it. But there are a lot of attorneys out there who say it doesn't exist (sometimes to the chagrin of their malpractice carriers), especially those who don't do much Family Law. Is it because some states (thinking of California) have a check-box on their complaints for "legal separation" and we don't? Because we term it a "judgment of limited divorce (or Divorce from Bed & Board or Divorce a mensa et thoro)" instead of a "judgment of separation"? How did the myth of the non-existence of legal separation come about?
I hope this issue is on the test for certification as Matrimonial Attorneys as the different statuses (divorce, legal separation, judgment of separate maintenance, annulment) have different consequences (from taxes to liability to ... ).
David Perry Davis, Esq.
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Respectfully, it is simply incorrect that "there's no such thing as legal separation in New Jersey."
I used to share office space with a firm that specialized in malpractice (legal and medical), who got a $375,000 legal malpractice judgment against an attorney who told a client "there's no such thing as legal separation in New Jersey." It later turned out the parties could've shared medical insurance for free under a legal separation, which a Divorce from Bed & Board / Divorce a mensa et thoro / Limited divorce absolutely is. The wife then got breast cancer and was uninsured and the ex said "of course I'd have agreed if we'd been told it was an option - but the attorney said there's no such thing as legal separation in NJ." Ooops. One thing's for sure, though - that attorney isn't out on the Internet spreading incorrect information.
As said, a reader doesn't have to wonder about a conflict between attorneys saying different things. Whereas those saying "there's no such thing as legal separation in New Jersey" cite only to themselves.
I cite to: State statutes - N.J.S.A. 2A:34-23(h), Equitable distribution is available following the entry of "a judgment of divorce, dissolution of civil union, divorce from bed and board or legal separation from a partner in a civil union." I guess those saying it doesn't exist need to advise the State legislature that it's law is wrong.
I cite to: Federal statutes / IRS Code - 26 U.S.C. § 71(a)(1) says that payments made following and imposed by a legal separation are income to the recipient. I guess those saying it doesn't exist need to advise the United State Congress, and IRS that they're all wrong and "there's no such thing as legal separation in New Jersey."
I cite to Federal case law: Hon. Henry Curtis Meanor, Interpreting the above statute, Judge Meanor discusses what is and what is not a legal separation in New Jersey. Capodanno v. Commissioner of Internal Revenue, 602 F.2d 64, 3rd Cir. (1979) /
https://scholar.google.com/scholar_case?case=15112973781950550701 . I guess those saying it doesn't exist need to advise the United States Court of Appeals (second highest court in the USA) for the Third Circuit that they're right (because they say so), the court is wrong and "there's no such thing as legal separation in New Jersey."
I cite to the Police and Firemens Retirement System (PFRS) official documentation - see pages 2 and 3 of Fact Sheet #42 (
http://www.state.nj.us/treasury/pensions/pdf/factsheets/fact42.pdf) ("You are responsible for notifying your employer with-in 60 days of a COBRA qualifying event such as divorce, dissolution of a civil union, or legal separation.") Guess they're all wrong, too.
I cite to the NJ Supreme Court, Appellate Division, and trial courts -- Here's 39 cases that discuss legal separation in New Jersey. And Google Scholar only goes back a few years, there are literally hundreds more out there, in case those saying legal separation doesn't exist will say that the 50+ judges and justices deciding these 39 cases are all wrong, wrong, wrong!!
https://scholar.google.com/scholar?q=%22legal+separation%22+divorce+&btnG=&hl=en&scisbd=2&as_sdt=4%2C31 I suppose I could also point to the half-dozen limited divorce judgments I've put through in the past year. Guess all those judges were wrong, too.
Issues like this are why attorneys should not dabble in various areas of the law. And, while it's often a learning process and we all make mistakes, to see attorneys continue to insist "there's no such thing as legal separation in New Jersey" in the face of the above is, well, just kind of scary. There are various legal statuses that can be pursued (divorce, legal separation, judgment of separate maintenance, annulment) and all of them have different consequences (from taxes to liability to whether they can be pursued consistent with Jewish, Christian, or Muslim law). The different statuses have different effects. An attorney taking money from the public and claiming to be a Family Law attorney needs to be aware of all of these, not be wandering around cyberspace saying "there's no such thing as legal separation in New Jersey."
I DEFY ANYONE SAYING IT DOESN'T EXIST TO GIVE ONE DAMNED LEGAL CITATION FOR THE BELIEF.