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Blogs from February, 2022

A divorce comes with several complicated issues. Not the least of which can be whether a couple is really certain they’re ready to legally end their marriage. There are also financial considerations–spouses can be dependent on each other for insurance, government benefits and more. They may find themselves looking for a less drastic option than divorce. In these cases, a divorce from bed and board can be a workable solution.

Divorce from bed and board, also known as “limited divorce,” is what New Jersey uses in place of a legal separation. Couples negotiate most of the issues they would in a “regular” divorce and live separate lives. But they remain legally married.

Property Division in a Divorce from Bed & Board

The spouses must split up most of their property the same as they would in a regular divorce. There are two issues that deserve special attention though–health insurance and inheritance rights.

Health Insurance

For the sake of discussion, let’s presume that one spouse has worked as a nurse. The other spouse is a teacher at a private school. The insurance offered by the low-budget school would require the employee to pay at least half of the premiums for high-deductible coverage. The hospital where the nurse works offers gold-plated insurance that’s 100 percent paid for by the employer.

It’s not hard to guess how this couple handled their insurance. The nurse put the teacher, and their three kids, on the hospital plan. If the spouses were to divorce, the children would likely stay on the hospital plan.

But what happens to the teacher? They’re working for a lower salary as it is, able to do work that is societally important and personally fulfilling, in large part because their spouse had excellent healthcare coverage.

Furthermore, the nature of the relationship between the nurse and the teacher is still reasonably amicable. Sure, there’s the angst and anger that can be common in any failing marriage, but neither one is out to destroy the other. Especially since they both have good relationships with the kids. The nurse would hate it if the teacher spouse had to give up their career to find a less fulfilling job simply over health insurance.

The divorce from bed and board can address this situation. The fact that the couple is still officially married–even after everything from the house to the cars to the 401(k) accounts have been put in one spouse’s name–is the key to continued health insurance coverage.

If the couple were fully divorced, that would be the necessary “qualifying event” for the insurance carrier to drop the teacher from the plan. Most plans do not consider the more limited option of divorcing from bed and board as a qualifying event. That would mean the teacher stays on the gold-plated plan offered by the hospital.

It should be noted that this issue is not without controversy, both in the insurance industry and in the political community. At various points, state legislators have sought to remove what some may see as a legal loophole and consider divorce from bed and board as a qualifying event.

It’s important to review your health insurance coverage with your attorney to ensure that the particular plan you are on hasn’t managed to add a divorce from bed and board as a qualifying event. But, in general, most people can stay on a spouse’s plan after this type of limited divorce.

Inheritance Rights

Are you ready to shift mental gears? Good, because inheritance rights use a legal approach that’s completely the opposite from that used with health insurance.

Whereas health coverage generally treats divorced from bed and board couples as still legally married, inheritance works just the opposite. The couples forgo any rights to inherit from each other or to put in a claim against the other’s estate.

This can have significant ramifications for the couple. Let’s look at our example with the nurse and teacher. The schoolteacher might not have a large salary, but their parents are wealthy. The parents are proud of their adult child for choosing a career where something could be given back to those less fortunate and have made provisions for them to be well-taken care of after they (the parents) have deceased.

The nurse was in line to share in that inheritance. Even though their health insurance is great, the salary is less so, and the anticipated inheritance from the in-laws was going to cover both in retirement. In a divorce from bed and board, those plans–at least for the nurse–are off the table.

Now, issues can be negotiated. Our example has the teacher still getting the benefits of being married to the nurse (the health coverage), while the nurse no longer gets the corresponding benefits (the inheritance). The nurse’s attorney can (and should) be aware of this discrepancy and can use it to negotiate favorable terms in other aspects of the settlement that will make their client whole. But the starting point under the law is that health insurance treats this couple as if they were still married, while inheritance laws treat them as divorced.

Enforcing a Divorce from Bed & Board Settlement

How the children will be raised must be settled in a divorce from bed and board. The couples must establish who has custodial rights. That includes physical custody–the decision on where the children’s primary residence will be. It also includes legal custody, which refers to the rights to make decisions on issues like religion, education, and healthcare for the children. And it includes the issue of paying for their upbringing–child support.

Child support payments will fall on whichever parent does not have primary residential care. Not paying child support is, unfortunately, not an uncommon problem in New Jersey and across the country. The parent with the kids at home can be left in difficult financial binds if their spouse does not meet their financial obligations and may look for legal recourse. That brings us to another important distinction between a divorce from bed and board and a regular divorce.

In a regular divorce settlement, violating a child support payment plan is contempt of court. This is a criminal offense and could result in jail time for the offender. Now, this typically does not happen in child support cases because the violator won’t be able to meet their financial responsibilities from a jail cell. But the threat of criminal charges can be a powerful motivator to move someone to action.

A divorce from bed and board is different. The agreement is still a contract and any breach of that contract can be brought to court. But it will be a civil case, not a criminal one. This seemingly minor legal distinction can become significant depending on how intractable the non-paying spouse is.

How to Get a Divorce from Bed & Board

You need grounds to file for a divorce from bed and board, just as you would a regular divorce. The grounds for divorce in New Jersey include the no-fault grounds of irreconcilable differences. They also include at-fault grounds, which range from adultery to desertion to physical or mental cruelty to addiction and more.

There is one important caveat that comes with any of the at-fault grounds–in a divorce from bed and board, the couple must agree on the grounds upon which they are filing. That makes irreconcilable differences the most realistic of any ground on which to secure a divorce from bed and board.

Why Get a Divorce from Bed & Board?

While there are practical reasons–like the health insurance example discussed above–to get a divorce from bed and board, the strongest arguments for this practice lie in its role as a steppingstone to something else.

A divorce from bed and board is actually one of the grounds that can be used to file for complete divorce. On the flip side, it’s also reversible. The couple that wants to get back together can simply have a divorce from bed and board agreement revoked and go back to living their married life. If they got a complete divorce, they would have to start all over again with another legal marriage.

Let’s return to our hypothetical with the nurse and the schoolteacher. Maybe the nurse has had enough and wants to end the marriage. The schoolteacher wants to make it work. They are at an impasse. The teacher won’t give in and file on irreconcilable differences.

In our example above, we noted that their relationship was still cordial enough that they weren’t out to destroy each other. The nurse isn’t going to try and tarnish their spouse in the eyes of the children by making a claim on fault grounds they know really don’t apply. Conversely, the teacher won’t force the nurse to stay in a marriage they don’t want. The teacher feels like it could be worked out with some time.

So, they compromise and go with a divorce from bed and board. If things don’t improve, the nurse will have the grounds to file for a complete divorce. If the time apart does provide what the couple needs, the bed and board agreement can be revoked.

Working through issues in a struggling marriage can be a very difficult process. Couples need to know all their legal options and they benefit greatly from an attorney who has the experience of hearing similar cases and knowing what avenues offer hope for a beneficial outcome.

DeTommaso Law Group, LLC has over 125 years of combined experience among our partners and we want that experience and knowledge to be put to use on your behalf. Call us today at (908) 274-3028 or contact us online to set up your initial consultation.