Divorce FAQ's
1. What is a divorce from bed and board?
There really is no formal proceeding to have a legal separation in New Jersey. The closest legal proceeding for a “legal separation” provides under New Jersey divorce laws is a divorce from bed and board. There is an outdated legal proceeding called a “divorce from bed and board” that is similar to a legal separation. Basically, a divorce from bed and board is a legal proceeding that is not really a divorce, but it is more than a legal separation. A divorce from bed and board was very popular in the 50’s and 60’s. Many people believed that getting a divorce was a mortal sin. These kinds of beliefs were especially prevalent for people of the Catholic faith.
To address these concerns the courts developed a legal proceeding called a divorce from bed and board. In this type of proceeding, the parties are economically divorced but they are still legally married. The parties obtain a judgment that equitably distributes the assets, support awards are issued, alimony awards are made, debts are apportioned, marital homes are sold, and pensions are divided. A divorce from bed and board does not terminate or dissolve the marital bond. Instead, the divorce from bed and board only declares that the parties are legally separated.
A divorce from bed and board is also commonly referred to as a limited, partial or a qualified divorce. A divorce from bed and board does all but terminate the bonds of matrimony. Although a divorce from bed and board is somewhat rare today, it may be desirable for couples who are averse to getting a divorce. For example, either or both parties may have religious reasons for not wanting to get an absolute divorce. The primary reason to obtain a divorce from bed and board is to enable both spouses to maintain health insurance coverage.
Another main difference between an absolute divorce and a divorce from bed and board, is that in an absolute divorce only one spouse has to file or request a divorce from the family court. Meanwhile, in a divorce from bed and board case both parties must request and/or agree that the court should grant a divorce from bed and board. If both parties don’t want to have the court grant them a divorce from bed and board, then the court will not grant one. Meanwhile, in an absolute divorce case the family court will grant a divorce even if one spouse does not want to get divorced.
2. What are the grounds for a divorce from bed and board?
A divorce from bed and board may be granted for the same causes that are required to obtain an absolute divorce. A very interesting feature of this cause of action is that it may be granted only when both parties request that the family court grant an absolute divorce.
3. What is the legal authority to support a divorce from bed and board?
The cause of action for a divorce from bed and board is provided by statute. N.J.S.A. 2A:34-3 provides;
Causes for divorce from bed and board
a. 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 if 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.
4. What are the benefits and drawbacks of a divorce from bed and board?
The major benefit of a divorce from bed and board is that a separated spouse can still receive health insurance benefits from the other spouse’s employee health plan. The employer’s health plan will not terminate the separated spouse’s health insurance benefits because there is not a complete divorce. In my experience retaining health benefits are the primary reason why a couple may choose to pursue a divorce from bed and board. In many cases, it is impossible for a divorced wife to obtain affordable health insurance benefits after a divorce. Therefore, if a wife has a medical condition, then it is imperative that she is able to maintain adequate health insurance coverage.
In many long term marriages a divorce from bed and board can enable a wife to retain her health insurance. Consequently, a separated wife can avoid paying oppressive Cobra payments, or avoid purchasing an exorbitantly priced health insurance policy. Another benefit is that the family unit can remain somewhat intact. It is important to emphasize that the other marital issues between the couple can be decided even though there is no complete divorce entered.
In many divorces from bed and board the court will award the wife a lower alimony award if the husband cooperates and consents to a divorce from bed and board. In many divorces of long term marriages, the court will require the husband to pay for alimony and for health insurance benefits for his ex-wife. Unfortunately, there may not be enough “money in the pot” to accomplish this. Therefore, a divorce from bed and board can solve this dilemma, even though it has its drawbacks. Life is a series of compromises, and a divorce from bed and board is certainly a major compromise for many divorcing parties.
In summary, a divorce from bed and board is a legal proceeding essentially halfway between a legal separation and an absolute divorce. This type of alternative to an absolute divorce is only advisable if the parties are still civil to each other. Moreover, this type of legal proceeding is really only applicable to a very long term marriage wherein neither person has any intentions to remarry. The major drawback of a divorce from bed and board is that even though the spouses are economically divorced, the parties are still technically married to each other. Therefore, it may be impossible for the spouses to date other people. Moreover, many spouses still may attempt to exert control over the other spouse because they are still technically married.
5. Is a divorce from bed and board permanent?
One of the advantages of a divorce from bed and board is that it can be modified. If the parties should reconcile, then the parties may apply for a revocation or a suspension of the divorce from bed and board. Moreover, if the parties should ultimately decide that they want to have an absolute divorce, then the statute provides that either party can make an application to convert a limited divorce into an absolute divorce.
6. I have agreed to obtain a divorce from bed and board with my wife. However, now I want to get an absolute divorce because I want to get remarried. What should I do?
The statute for divorce from bed and board, N.J.S.A. 2A:34-3 provides 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 a limited divorce into an absolute divorce. The statute does not leave the trial court with the discretion to grant or deny an application for conversion – it must be granted as a matter of right. I would advise you to file an application to convert the limited judgment of divorce into an absolute divorce. You should file a motion to convert your limited judgment of divorce into an absolute divorce.
7. I have a divorce from bed and board from my wife. My wife recently won the lottery, and she won $5,000,000. Do I have any legal claims to her winnings?
No. A divorce from bed and board also should address the equitable distribution of all of the parties’ marital assets. N.J.S.A. 2A:34-3 specifically provides that a limited judgment of divorce may equitably distribute the marital property. Therefore, for all practical purposes, once the limited judgment of divorce is filed, then any property that is acquired by either spouse is their own separate property. During the time that a limited judgment of divorce is in effect, then all of the property rights of either spouse are the same as if they were married.
8. I have obtained a divorce from bed and board from my husband. My husband wants to get remarried. Therefore, he has filed an application to convert the limited divorce into an absolute divorce. I don’t want to have an absolute divorce, and the terms of my divorce from bed and board were really lousy. Can I block my husband’s application to convert? What else can I do?
There is a split in the law on this issue. N.J.S.A. 2A:34-3 which is the statute for a divorce from bed and board provides “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.”
After reviewing this statute it would appear that a spouse has an absolute right to file an application to convert a limited divorce into an absolute divorce. Illustrative is the case of Horesta v. Horesta, 118 N.J. Super. 71 (App. Div. 1971). Here, the plaintiff husband filed an application for a summary judgment to convert of a judgment for a limited divorce to a divorce from bed and board. The court granted the plaintiff’s motion for summary judgment seeking a conversion of the judgment of divorce from bed and board. The court further noted that the judgment for an absolute divorce was granted for the same cause of action upon which the prior judgment for the divorce from bed and board was granted upon.
Meanwhile, the case of DeAngelis v. DeAngelis, 122 N.J. Super. 48 (App. Div. 1973), reached a different result on an application by a husband to convert a divorce from bed and board into an absolute divorce. In the DeAngelis case the court held that if a defendant wants to convert a judgment for a limited divorce into a judgment for an absolute divorce, then he must institute a plenary action to do so. Here, the plaintiff Louise DeAngelis was granted a divorce from bed and board on May 21, 1959 on the ground of adultery. A property settlement agreement was entered into between the parties at the time judgment was entered. On September 14, 1971, the defendant filed a notice of motion in the original cause seeking to convert the limited divorce judgment to one of absolute divorce under N.J.S.A. 2A:34 3. In the interval between May 1959 and September 1971 the defendant had obtained a Mexican divorce and remarried, and Louise had secured a judgment in New Jersey which found that the Mexican divorce was void. When the motion to convert was made, the plaintiff responded with a cross motion seeking alimony and maintenance, and equitable distribution of property and counsel fees and costs. The record does not disclose that the plaintiff opposed the application for conversion below. The trial judge, after hearing oral argument denied both motions. The court ruled that it denied both motions on procedural grounds. Moreover, the court ruled that a new action was required to be filed to obtain the relief sought by motion. Thereafter, the case was appealed.
On appeal, the Appellate Division held that the defendant John DeAngelis was required to institute a plenary action if he wanted to convert the judgment for a limited divorce entered against him into one of absolute divorce under N.J.S.A. 2A:34 3. The Appellate Division also held that if Mr. DeAngelis elected to move under the statute in this manner, then the plaintiff Louise DeAngelis would have the opportunity to establish that she was entitled to a revision of whatever property agreement that existed between the parties. These areas include such items as alimony, dower and equitable distribution of property.
In summary, there is no clear cut answer as to whether a separated spouse can automatically have an application to convert a divorce from bed and board into an absolute divorce. The statute N.J.S.A. 2A:34-3 and the Horesta case indicate that a separated spouse has an automatic right to have a limited divorce converted into an absolute divorce. Alternatively, the DeAngelis decision indicates that a spouse has to file an application for a plenary hearing to seek to have a limited divorce converted into an absolute divorce. Moreover, at this plenary hearing either spouse may make an application to modify the terms of the limited judgment of divorce. Consequently, according to the DeAngelis view a limited judgment of divorce can be re-litigated if there is a substantial change of circumstances, or if it was grossly unfair.
9. I have obtained a divorce from bed and board from my husband. My husband recently died, and he has left me nothing under his will. Do I have any rights to make any claims against my husband’s estate?
No. All equitable distribution issues should be decided in the divorce from bed and board case. Therefore, you are probably barred from any making any claim against your husband’s estate. Illustrative is the case of In re Friedman’s Will, 83 N.J. Super. 116 (App. Div. 1964). Here, the wife obtained a divorce from bed and board, and after which the husband died, leaving her nothing under his will. In response, the wife filed a caveat to the will. The court held that she was entitled to nothing under the will after the entry of a bed and board divorce. In summary, one of the primary aspects of a divorce from bed and board is that it suspends certain marital rights to inheritance. A divorce from bed and board suspends the spouse’s estate rights of the separated spouses. Therefore, in any divorce from bed and board case all property issues must be addressed.
10. What are some other benefits of obtaining a divorce from bed and board?
The main advantage of having a divorce of bed and board is that it enables both spouses to keep their health insurance benefits from an employer’s health plan. However, there are other benefits as well. A major part of any pension plan is the survivor benefits. This basically means that the surviving spouse will still be able to receive pension benefits once her spouse dies. If there is an absolute divorce then the survivorship benefits are terminated. However, in some pension plans a divorce from bed and board will not terminate the survivor pension benefits. It is important to emphasize that the contents of any pension plan must be fully examined and researched before making any type of legal analysis as to whether a pension plan’s survivorship benefits will terminate upon a divorce from bed and board. Moreover, there is no existing case law on this issue.
A review of the case law also indicates that a divorce from bed and board will enable a separated couple to retain many legal rights. Illustrative is the case of Jackson v. Township of Neptune, 15 N.J. 498 (Tax Ct. 1996). Here the court held that the fact that a husband and a wife obtained a divorce from bend and board did not affect the wife’s claim to the veteran property tax exemption. The court held that even though the parties were separated the marital bond still subsisted. Therefore, a review of the Jackson v. Township of Neptune holding indicates that a separated couple who have obtained a divorce from bed and board are still eligible for many of the governmental benefits that are given to married couples.
11. What are the pros of a divorce from bed and board?
A. Maintain Health Insurance
The major benefit of a divorce from bed and board is that both the dependent spouse can still obtain medical insurance coverage from the other spouse’s health insurance plan. In a regular divorce that is also called an absolute divorce, once the divorce is put through then the dependent spouse’s right to continue to obtain health insurance is cut off. Once the parties are divorced, then any employer based health plan cuts off the health insurance for the dependent spouse. However, in a divorce from bed and board, the bonds of matrimony are only 99% cut. A divorce from bed and board is the closest proceeding to a legal separation in New Jersey.
Maintaining health insurance is very important in these distressed economic times. COBRA is always available for the dependent spouse. However, most monthly payments for COBRA are around $750 per month. In most divorces there is only so much money to go around. Therefore, a divorce from bed and board allows a financially distressed couple to stretch out their dollars and enable the dependent spouse to stay on the employer based health plan. Nonetheless, it is important to note that some health plans are catching up to these loopholes. Some health plans are denying health insurance coverage for a couple that has obtained a legal separation or a divorce from bed and board.
B. Incentive to Settle the Case
A divorce from bed and board also can be used as a strong incentive to settle the divorce. In many divorces the provider husband simply can’t afford to pay for alimony and for health insurance coverage for his financially dependent wife. Therefore, a divorce from bed and board will allow the couple to stretch their financial resources. The dependent wife will still be able to stay on her husband’s employer based health plan. Meanwhile, the husband can then bargain for a lower alimony payment.
C. A Divorce From Bed and Board Can be Revoked
A divorce from bed and and board can be revoked. In the world of family law it is not uncommon for divorces cases to be dropped and the parties reunite. Moreover, many people get remarried after they get divorced. The beauty of a divorce from bed and board is that it is not permanent. If the parties get back together then the divorce from bed and board can be revoked and dropped.
D. A Divorce From Bed and Board can be Converted into a Full Divorce
A limited bed and board divorce can be converted into a full divorce. Moreover, if all of the terms to dissolve the marriage have been agreed to in a PSA, then it is not difficult at all to convert the divorce from bed and board into a full divorce.
E. A Divorce From Bed and Board Will Not Terminate Rights of Survivorship in a Pension
In many divorces the equitable distribution of the pension is a key issue. One of the most important parts of any pension is whether it has survivorship benefits. This term basically means does your spouse receive any pension payments once you die. If you obtain a full divorce then any survivorship benefits are cut off. However, in a limited divorce then the the survivorship benefits for most pension plans are not cut off.
F. A Divorce From Bed and Board Cuts Off Inheritance RightsÂ
Another important aspect of a limited divorce is that it terminates each party’s right to claim an elective share against the estate of their spouse. Basically, with a divorce from bed and board all inheritance issues are resolved as well.
12. What are the cons of a divorce from bed and board?
A. Both Parties Have to Consent to a Divorce From Bed and Board
An important aspect of a divorce from bed and board is that both parties have to consent to it. If you file for a divorce from bed and board, and if your wife does not want to go along with it, then the judge will not grant it. Both parties have to agree that a limited divorce is best for the both of them.
B. Both Parties Are Not Free to Remarry
In a divorce from bed and board both parties are not free to remarry.
C. Sometimes it is Difficult to Convert Limited Divorce into a Full Divorce
In many cases it may be very difficult to convert a limited divorce into a full divorce. Much of New Jersey family law jurisprudence is based on the concept of “change of circumstances.” Therefore, there is not complete closure in a limited divorce.
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