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Mr. D’Aniello teaches further that, generally, a person who is divorced from bed and board may be entitled to benefit from their spouse’s employer provided “family” or “spousal” health insurance coverage, and from the survival benefits from a spouse’s employer provided pension plan; HOWEVER, the terms of the insurance and pension plan need to be checked carefully, as some have exclusionary language, such that they may not be applicable to individuals who obtained a “legal separation.”

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

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Divorce from bed and board is New Jersey’s statutory version of legal separation. See Mueller v. Mueller, 95 N.J. Super. 244, 247 (App. Div. 1967). Upon later application to the court, either party has an absolute right to convert the bed and board divorce into a “divorce from the bonds of matrimony.” N.J.S.A. 2A:34-3.

For and during the time that any judgment for divorce from bed and board . . . 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. [N.J.S.A. 2A:34-6.]

As the court indicated in Muller, supra,

N.J.S. 2A:34-6, was enacted to clarify the property rights of parties to a judgment of divorce from bed and board. The statute provides that while such a judgment remains in force all property rights of the parties shall be as though a judgment for absolute divorce had been entered.

[Muller, supra, 95 N.J. Super. at 248.]

In other words, while they are divorced from bed and board, each party may acquire property free of the rights that the other party would have in that property if they were not divorced. For example, in Lavino v. Lavino, 23 N.J. 635 (1957), the Supreme Court rejected a wife’s claim to inchoate dower rights in property her husband purchased after the parties obtained a divorce from bed and board:

N.J.S. 2A:34-6 represents a statutory alteration [from the common law]. It seeks to abolish any marital property rights of spouses who have obtained a limited divorce. In brief, dower and curtesy are barred “for and during the time that any judgment for divorce from bed and board shall remain in force and effect.” . . . [T]he right is simply prevented from arising upon property acquired after the enactment [of the statute].

[Id. at 639-40.]

Likewise, the court has held that a divorce from bed and board precludes a wife from inheriting her husband’s property when he dies intestate. See In re Friedman’s Will, 83 N.J. Super. 116, 119 (App. Div. 1964).

In light of its purpose, as well as its wording, N.J.S.A. 2A:34-6 does not mandate that an award of alimony, entered years after the bed and board divorce, must be deemed retroactive to the date of the bed and board divorce order. See Blaine v. Blaine, 96 N.J. Super. 460, 462 (Ch. Div. 1967) (“Alimony is for the personal support of the wife. It is not a property right.”) In fact, to the very limited extent that the issue of alimony has been addressed in this context, the court’s decision in DeAngelis v. DeAngelis, 122 N.J. Super. 48 (App. Div. 1973), suggests that an alimony award entered upon conversion of a limited divorce into an absolute divorce, will be prospective. There, the court held that an action to convert must be filed through a new complaint and not by motion in the old “bed and board divorce” docket. The court also indicated that if one party files a conversion action, the other party may seek to revisit alimony and other financial issues:

If defendant … desires to convert the judgment for present limited divorce entered against him into one of absolute divorce under N.J.S.A. 2A:34-3, he must institute a plenary action to do so. Of course, if he elects to move under the statute in this manner, plaintiff … will be free to establish that she is entitled to a revision of whatever property agreement exists between the parties, including such items as alimony, dower and equitable distribution of property.

[Id. at 49-50.]

See related Blog Post, by Robert A. Epstein, Esq. of Fox Rothschild LLP.

NOTE: My legal and mediation services are offered to clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

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Clients should check with their accountant as to tax issues, but, I understand that a person may NOT file as “Married filing separately” if that person has a limited divorce; i.e., a divorce from bed & board; although the divorced (from bed & board) parties remain linked for social security purposes, they are separate for federal income tax purposes.

IRC 6013 operative language for filing single:

….(d)(2) an individual who is legally separated from his spouse under a decree of divorce or of separate maintenance shall not be considered as married;

1. According to the Tax Court, an individual is considered legally separated under a decree if the decree “expressly and affirmatively provides that the parties live apart in the future.” Capodanno v. Comr., 69 T.C. 638 (1978), aff’d, 602 F.2d 64 (3d Cir. 1979) (quoting Boettiger v. Comr., 31 T.C. 477 (1958), acq., 1959-1 C.B. 3). A decree of support or temporary alimony alone, with no accompanying requirement of separation, is not considered a decree of divorce or separate maintenance within the meaning of §7703(a)(2). A voluntary separation under a voluntary separation agreement does not constitute legal separation for purposes of §7703(a)(2).

2. Since a preliminary court order issuing support does not constitute a decree of separate maintenance, the taxpayer could not file as a single taxpayer. Freyre v. U.S., No. 03-2099 Ma/A (W.D. Tenn. 1/29/04).

3. Head of household under certain circumstances – live separate plus a child – A married taxpayer will be considered unmarried and eligible for head of household status if the taxpayer’s spouse was not a member of the household for the last six months of the year and if the household is the principal place of abode of a child for whom the taxpayer is entitled to a dependency exemption.

SOURCE: Little known tax issues, by Michael D. Daniels, CPA, Esq.

This issue was highlighted for me by David Perry Davis, Esq. and Lois S. Fried, CPA.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

The 1988 amendments to the Federal Medicaid statute, which created the community spousal allowance, were intended to prevent community spouses from becoming impoverished. Congress recognized that, particularly for women who had been homemakers, and who relied on their husbands’ pensions for support in their old age, the requirement that the husbands’ entire income be used to pay nursing home bills represented an economic catastrophe. H.R. Rep. No. 100-105(II), at 65 (1987), reprinted in 1988 U.S.C.C.A.N. 857, at 888 (1987). Congress recognized that under the existing Medicaid law, some community spouses were forced, in desperation, to sue their institutionalized spouses for support. Id. at 69, 1988 U.S.C.C.A.N. at 892. The amendments were designed to avoid that need, by allowing some portion of the institutionalized spouse’s pension or other income to be used to support the community spouse. Ibid.

In that context, Congress also recognized that under “special circumstances,” a court order for support might supercede the normal community spouse allowance:

Court ordered support. — The Committee recognizes that there will be some instances in which the rules set forth in the bill do not take adequate account of the special circumstances affecting a particular community spouse. The bill therefore provides that, if a court has entered an order against an institutionalized spouse for monthly income for the support of the community spouse, the community spouse monthly income allowance must be at least as great as the amount of the income ordered to be paid.

[Id. at 72, 1988 U.S.C.C.A.N. at 895-96.]

In this case, H.K. and R.K. attempted to invoke the “court order” exception of N.J.A.C. 10:71-5.7(f), by obtaining a divorce from “bed and board” ^[1] with a property settlement agreement providing for support to be paid to R.K. from H.K.’s pension. The divorce action was finalized by consent. The Final Judgment of Divorce From Bed and Board specifically recited that the property settlement agreement, incorporated in the judgment, was entered without the court having taken testimony “as to the merits thereof, and therefore [the court] makes no judgment with respect to the fairness thereof.” Based on this final judgment, H.K. sought recalculation of H.K.’s Medicaid benefit, claiming that the court order for her support superceded the cap on the spousal allowance. But, the Board declined to recognize H.K.’s support obligation to R.K. as a deduction for Medicaid purposes.

This case concerns the tension between the State’s effort to conserve Medicaid resources for the truly needy and the legal ability of institutionalized Medicaid recipients to shelter income for the benefit of their non-institutionalized spouses. In this case, the court held that the applicant and his wife transgressed the permissible limits of Medicaid planning by entering into a divorce from bed and board and agreeing, in a consent order entered without judicial fact finding, that the institutionalized husband’s pension benefits would be paid to the wife as alimony.

Also, in this case, the State Medicaid program was not served with the complaint or otherwise given notice of the proceeding. As a result, the proceeding was not genuinely adversarial, no factual record was made to support the alimony award, and the court that entered the order did not determine whether the award was justified in light of the countervailing interests of the State in having H.K. use his income to pay for his nursing home care.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

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1. Also known as a “limited divorce,” a divorce from bed and board does not dissolve the marriage; it formalizes the couple’s arrangement to live separately and requires one spouse to pay for the other spouse’s separate living expenses. N.J.S.A. 2A:34-3; see Weinkrantz v. Weinkrantz, 129 N.J. Super. 28, 32-33 (App. Div. 1974). As a result of the divorce from bed and board, H.K.’s wife remained a “community spouse” for Medicaid purposes. See N.J.A.C. 10:71-5.7(c).

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The N.J. Legislature has established both absolute divorce and divorce from bed and board in New Jersey. N.J.S.A. 2A:34-2 establishes the requirements for a judgment of absolute divorce. N.J.S.A. 2A:34-3 sets out the requirements for a judgment of divorce from bed and board. In Lavino v. Lavino, 23 N.J. 635 (1957), the New Jersey Supreme Court explained that the difference between the two types of divorce was that “[a]bsolute divorce dissolves the marital bond and all dower rights are barred. In [divorce from bed and board] the marital bond subsists….” Id. at 639; Weinkrantz v. Weinkrantz 129 N.J. Super. 28, 32 (App. Div. 1974); Mueller v. Mueller, 95 N.J. Super. 244, 247 (App. Div. 1967) (Divorce from bed and board is not a true divorce since it does not dissolve the bonds of matrimony but merely decrees a judicial separation.). Significantly, in order to remarry after having obtained a judgment of divorce from bed and board, the parties must apply to the court for conversion of the bed and board divorce to an absolute divorce. See N.J.S.A. 2A:34-3; Rudin v. Rudin, 104 N.J. Eq. 524, 525 (Ch. 1929).

The primary purpose for obtaining a divorce from bed and board is to terminate the marital obligations of cohabitation and support. Lavino, supra at 639. Divorce from bed and board is “[t]he closest analogy to a `legal separation’ provided in New Jersey divorce laws….” 1 Gary N. Skoloff & Laurence J. Cutler, New Jersey Family Law Practice § 2.6 at 585 (7th ed. 1994). A married couple might choose to obtain a judgment of divorce from bed and board rather than an absolute divorce for religious reasons. They may no longer wish to live together, but their religious faith may prevent the couple from officially dissolving the bonds of matrimony.

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A tenancy in common is subject to partition proceedings whereas a tenancy by the entirety is not. Lawrence v. Lawrence, 79 N.J. Super. 25, 32, 190 A.2d 206 (App. Div. 1963).

A judgment of divorce from bed and board (limited divorce) is not a true divorce since it does not dissolve the bonds of matrimony but merely decrees a judicial separation. Rudin v. Rudin, 104 N.J. Eq. 524, 146 A. 351 (Ch. 1929).

A tenancy by the entirety is a creature of the common law anomalous in nature, based on the legal concept that husband and wife are one. Estates by the entirety have no moities. Each spouse holds the entirety and each receives Per tout et non per my.

Since an absolute divorce terminates the marital relationship, it converts an estate by the entirety into a tenancy in common. Sbarbaro v. Sbarbaro, 88 N.J. Eq. 101, 102 A. 256 (Ch. 1917). However, by common law mere separation of husband and wife, whether voluntary or judicial, did not affect an estate by the entirety nor change its essential characteristics. Dorf v. Tuscarora Pipe Line Co., Ltd., 48 N.J. Super. 26, 32, 136 A.2d 778 (App. Div. 1957).

N.J.S.A. 2A:34-6 was enacted to “clarify” the property rights of parties to a judgment of divorce from bed and board. The statute provides that while such a judgment remains in force all property rights of the parties shall be as though a judgment for absolute divorce had been entered.

Our Supreme Court, in Lavino v. Lavino, 23 N.J. 635, 640, 130 A.2d 369, 371 (1957), said that the statute in question does not operate ‘to dislodge any inchoate right (of dower) previously existing and so it has no ‘retroactive effect’; the right is simply prevented from arising upon property acquired after the enactment.’

The statute did not affect tenancies by the entirety created prior to the enactment of the statute [1949].

[Special thank you to R. Scott King, Esq. for bringing this case to my attention.]

NOTE: Adwokat / Prawnik Pawel Kostro mowi po polsku.

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