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Married or Divorced: Are There Any Other Options?

Rachel Alexander Nov. 12, 2020

{6 minutes to read}  A dear friend of mine has a saying from his Irish grandfather: Married or not: you’ll regret it.

So for our purposes, while that may well be true, there is also a fiction among us that you are either married or divorced. In New Jersey, in particular, because “separated” is not a recognized legal status, people are at a loss as to how to appropriately describe their circumstances. The purpose of this article is to notify one and all that there are, indeed, other options.

Options: their usefulness

Relationships are tough, and life is tougher. Sometimes during the course of a marriage, internal and external factors strain the marriage, necessitating an intervention. Divorce need not be the only viable action or way forward. Nor should suppressing one’s unhappiness be the only other alternative. Choices foster control, empowerment and creativity.

In mediation, whatever a marriage is up against can be articulated and addressed. Perhaps there has been a violation — an infidelity, a financial betrayal, a parenting challenge that compromised spousal unity. These issues may have injured the relationship, but the wound is not necessarily fatal and can be dressed with the balm of empathic attention and agreement.

When there is only the option of “married” or “divorced,” folks get stuck doing one or the other or nothing at all for lack of a suitable solution. Mediation aimed at creating a written agreement — not necessarily a divorce agreement — can revitalize a marriage.

Here are some options that everyone should know about. Suffering need not be one, apart from the normal suffering accompanying all choices, particularly of either being married, unmarried, and so forth (see above).

Postnuptial Agreement

Couples encountering post-marital problems can benefit from a postnuptial agreement or “postnup.” When would couples seek such an option? Perhaps the marriage was breached when one party liquidated a retirement account to purchase a property without disclosing this investment to the other party. Perhaps an ongoing affair was discovered, and the “harmed” party needs certain assurances in order to stay in the marriage and in the event a similar transgression occurs again. Establishing remedies and protections for the injured spouse, as well as commitments from both spouses implementing concrete behaviors to build the relationship going forward, can erect scaffolding upon which trust can be rebuilt.

Postnuptial agreements can address marital fissures in a formal, legal way while protecting and even healing the marital compact.

Therapeutic Separation

A therapeutic separation occurs when people decide to live separately for a period of time without taking any formal steps to begin a legal process. During this period, couples may agree to pursue regular therapy, participate in weekly date nights, and even try out what being divorced would be like.

Where might mediation come in? During a period of separation, it is wise to execute an interim parenting and financial agreement to govern expectations and establish a norm while the parties are living separately. Some items that can be addressed are a timeframe for the separation period, how to measure success or failure of this trial, and how to proceed in the event either reconciliation or divorce is the right next step.

Legal Separations: Contractual separation in New Jersey; Formal separation agreement in New York.

Creating an agreement provides guidance for the parties and defines the objectives of their separation. This helps parties use the separation period thoughtfully and establish parameters to evaluate whether things are improving, or whether other steps are warranted.

Separations are helpful for psychological reasons as well. A separation provides time for individuals to get on their feet and process feelings and logistical considerations, without having to proclaim a status change, take legal action, or make decisions they have not yet fully formulated. A separation allows couples to postpone adopting terminology (single, divorcing) that they might associate with triggering stigma and limitations that are unnecessary to grapple with prematurely (if at all). A separation, while of course a label as well, tends to invoke a sense of fluidity and possibility; it can be a kinder, gentler [interim] option.

Divorce from Bed and Board

Another option in New Jersey is a Divorce from Bed and Board. In this option, couples are divorced in most respects but are not free to remarry. Though an antiquated anomaly, hearkening to the mostly bygone era when religion made divorce punitive (if not impossible), Divorce from Bed and Board is one aberration that is useful. It can often provide a continuation of health insurance coverage for the covered spouse, and allow for a hybrid way to define marital status until another option feels more fitting. A Divorce from Bed and Board can be converted, as a matter of right, to an Absolute Divorce, with the filing of several relatively straightforward documents, utilizing the pleading already produced, and without having to begin the entire process again. After the conversion, parties are free to remarry.

Part of the stress inherent in marital crisis is the sense that there are so few choices and no good ones. Remember, everything does not have to be done overnight, and some things need not be done at all.

There are multiple options, and together with your mediator, you can find the best direction for your family now, revising your course as things change.