Divorce – Frequently Asked Questions

What is an uncontested divorce?

An uncontested divorce is one where all issues relating to children, support, property, debt and insurance have been resolved by a written agreement (or an oral agreement with which the parties have been complying) so that all that is left for the judge to do is dissolve the marriage.

How long does it take to get divorced in NJ?

The Administrative Office of the Courts in New Jersey has mandated that, except in complex cases (such as those involving equitable distribution of businesses or professional practices) or cases involving exceptional circumstances, all divorce proceedings should be concluded within 12 months of the date that the divorce complaint was fil ed with the clerk of the court. In most cases, the case concludes well within that 12-month deadline.

What role does fault play in divorce in NJ?

In making its determinations, the New Jersey Family Court does not assess blame for the divorce to either party and, therefore, does not punish either party for ending the marriage.

What are the grounds for divorce in NJ?

There are a number of legal reasons which permit the court to grant a divorce, including, but not limited to, adultery, extreme cruelty, separation, voluntarily induced addition, institutionalization for mental illness, imprisonment, desertion, habitual drunkenness or deviant sexual conduct.

IMPORTANT CHANGES TO THE LAW

Divorce based upon “irreconcilable differences” is now available in New Jersey. As of March 9, 2007 a divorce can now be granted based upon “irreconcilable differences which have caused the breakdown of the marriage for a period of six months and which make it appear that the marriage should be dissolved and that there is no reasonable prospect of reconciliation.” (N.J.S.A. 2A:34-2(i)) This has been a long-awaited change in our legislation that eliminates the need for spouses to allege particularized acts of extreme cruelty which only added to the cost and unnecessary acrimony of divorce proceedings, and avoids the older no-fault cause of action which required an 18-month physical separation before filing for divorce. The new cause of action brings a new level of civility and practicality to marital dissolution in New Jersey.

How long does one have to reside in NJ?

Except for divorces filed on adultery grounds (where there is no waiting period), one of the spouses must have resided in New Jersey for at least 12 continuous months for either spouse to be able to seek a divorce in the Superior Court of New Jersey.

How is child support determined in NJ?

Under federal pressure, all 50 states and Puerto Rico now have enacted child support guidelines to facilitate a quick, efficient and fair means of providing for the support of children of separated parents (whether married or not).

What are the criteria for determining alimony?

There is no chart to determine alimony (also known as spousal support) as there is for determining child support. Rather, alimony is determined based on criteria laid out in the alimony statute and varies from case to case based on the incomes or income-earning ability of the spouses, the length of the marriage, the educational background and earnings history of each spouse, and the standard of living that the parties were able to achieve in their marriage.

What are the criteria for dividing marital property and debt in NJ?

The criteria for dividing marital property and debt under New Jersey law are similar to (but not exactly the same as) those criteria used to determine alimony. Again, there is no chart and there is no presumption of equal division. Each property item or asset must be divided individually based on the statutory criteria applicable to that asset.

Are parents free to leave NJ with the children of a marriage?

Under New Jersey law, neither parent can remove children (born in New Jersey or who have lived here for at least five years) from the State of New Jersey without the other parent’s consent or a court order (unless the children are well into their teens and want to move out of state with a parent).

When does child support end?

Child support ends in NJ when a child is declared emancipated by a judge (or by agreement of the parties). NJ law generally emancipates a child not at the age of 18 (the age of majority in NJ) but when the child completes his/her formal education unless prior thereto a child marries or becomes employed full time (other than during summers and other school recesses). Thus, CS can continue while a child completes his/her college (and in some cases post-graduate) education.

Can a judge make a parent contribute to a child’s college expenses?

New Jersey is one of the few states that authorizes its judges to allocate the cost of college between the parents (after allocating a portion of the cost to the child). There are many factors taken into account in such a determination, including continuing child support for the college student, also something that few states’ judges are authorized to do.

Can we use one lawyer?

The Rules of Professional Conduct (the ethics rules governing attorney conduct in NJ) prohibit one lawyer from representing “adverse parties” in the same proceeding. Even if a case is settled, technically, since the divorce proceedings are set up in New Jersey as one party versus (against) the other (as compared to California where dissolution proceedings are captioned In re the Marriage of Husband and Wife), a divorce proceeding is an adverse proceeding. An attorney must pledge his or her loyalty to the one party that he or she represents and cannot ethically represent both parties in a proceeding seeking to dissolve the marriage.

Further, legal advice given by an attorney to his or her client often involves both the downside and upside of taking one position or another on issues being resolved in the divorce proceeding. If the attorney tells his or her client both the upside and downside of a decision the client must make, that opinion is privileged such that the attorney cannot ever be compelled to disclose what he or she told his or her client; and the client then can decide which course of action to take. Telling both parties the same information tells each side the strengths and weaknesses of deciding the issue one way or the other, thereby revealing weaknesses to one as a strength to the other.

For example, in allocating support between alimony and child support, the more child support there is, the less income taxes the support recipient owes (as alimony, if properly structured, is taxable to the recipient and deductible by the payor). That creates an automatic tension between agreeing on more or less child support as part of the total support agreement. (There also are other factors to be considered in determining how heavily to weight alimony versus child support when the parties agree on the total amount to be paid but not the allocation of the total amount between alimony and child support.)

Is there such thing as a legal separation in New Jersey?

Although you will hear people tell you that they are legally separated, there is no such thing as legal separation in New Jersey although there is in other states. (This makes a difference in how income taxes are filed for spouses not living together but not yet divorced by December 31st which is the date the IRS looks to to determine a taxpayer’s filing status (married or single) for the tax year.)

When people speak of being legally separated in New Jersey, they may be referring to the fact that they have entered into a written separation agreement governing custody and a parenting plan and support (and maybe even division of property and debt); or where, instead of having the marriage dissolved, the spouses filed for separate maintenance (a type of support proceeding in New Jersey that results in the entry of a support order but not dissolution of the marriage) or for divorce a mensa et thoro (divorce from bed and board) that allows the parties to live separately while still remaining married (which some spouses wish to do for religious reasons or, where the insurance plan allows it, to continue with health coverage through the other spouse).

Will my spouse have to pay my legal fees if he is the one who wants the divorce?

The answer is “no.” Whether one spouse must contribute to the other spouse’s legal fees is governed by factors set forth in a statute and in a court rule. Those factors do not include who wanted the divorce nor which spouse was “at fault” (to the extent that any divorce is solely the fault of one spouse as opposed to the mere deterioration of the marriage).

What will my divorce cost?

The cost of your divorce cannot be predicted. Since attorneys experienced in family law bill the client based on an hourly rate, what the divorce costs depends on the number of hours the attorney puts into the case. That depends mostly on how much fighting takes place as the spouses try to resolve by agreement the legal issues (custody; a parenting plan; support; and division of property and debt) that the judge must decide following a trial if the parties cannot agree between themselves directly or through mediation or with the assistance of and negotiations through their lawyers.

The more the spouses fight over custody, support, or property division, the greater their legal fees will be for the attorneys, in that case, will have had to spend more of their time on the case than they would have had to spend had the parties settled the disputes more quickly.

Unfortunately it is the emotional aspects of the separation that cause legal fees to rise moreso than the legal complexity of the case. We have resolved cases involving millionaires for less than $10,000 in legal fees and yet have had middle income clients incur more than $50,000 in legal fees fighting over custody.

While one cannot put a value on one’s child, parents getting divorced must remember that no one “wins” or “loses” custody; rather, the judge must decide how much time the children spend with each parent, for except in extremely rare cases does any parent “lose” his or her children in divorce.

How can I control my legal fees?

There are many ways that one can control one’s legal fees as it is mostly the client’s actions that cause the legal fees to rise, not the actions of the attorney.

First, the sooner one can accept that the marriage is over and that neither spouse is going to be “punished” by the judge for “causing” the marriage to break down, the lower the legal fees likely will be as it is the continued battling of the marriage that causes increased attorney hours and resulting increased legal fees.

Second, getting into counseling with a pastor, priest, rabbi, psychiatrist, psychologist, or social worker will keep your legal fees down. Clients who are in counseling tend to involve their attorneys less in the emotional issues and crises that automatically come with separation and divorce, as they have a proper professional outlet in the form of their clerical counselor or therapist with whom to address those emotional issues. This results in less frequent calls to the attorney over emotional rather than legal issues.

Third, to the extent that one can approach one’s divorce from the same standpoint that judges do, legal fees will be reduced. Judges by law are not allowed to consider sympathy or passion in deciding the case, nor are they allowed to “punish” either side. Rather, for those cases that are tried (because they can’t be settled) the judges must focus on establishing a parenting plan that the judge decides to be in the children’s best interest, a support arrangement that is fair to both sides (without punishing either spouse), and a division of property and debt that is fair and equitable. Therefore, if you, too, focus on trying to reach agreement with the other parent on what is best for your children; what support arrangement is fair to both sides; and what division of property and debt would be fair to both side; and, if you listen to and are guided by your attorney’s knowledge of the law and his or her experience with the judge assigned to your case (which is why you have an attorney in the first place), you can reduce your legal fees substantially.

Will all legal fees end when the judge dissolves my marriage?

There almost always is further work to be done by the attorney even after the court appearance when the judge dissolves the marriage.

For example, if retirement assets (pensions, profit-sharing plans, 401(k) plans, or other tax-deferred retirement-type plans) are involved in your case, a special court order called a QDRO (Qualfied Domestic Relations Order) or a DRO (Domestic Relations Order) or a similar type of court order dividing retirement plan interests must be prepared, approved by the retirement plan administrator, signed and filed by the judge, served on the retirement plan administrator and then implemented by that plan administrator.

Also, the division of other assets may involve your attorney preparing deeds or being involved to some degree in division of investment accounts or confirmation that proper death beneficiary designations on retirement plans and under life insurance policies is in place as required by the parties’ settlement.

All of this “clean-up” work is important and may result in some additional legal fees after the actual dissolution of the marriage occurs in the courtroom. (While there is an experimental program in some counties in New Jersey to allow divorce by affidavit without a court appearance for settled cases, in most cases a court appearance before a judge is required for the marriage to be dissolved just as the commencement of a marriage requires the parties getting married to be present in front of an official (religious or civil) who performs the marriage ceremony.)

Can I get a jury trial in my divorce proceeding?

Generally divorces in New Jersey are tried before a judge (called “a bench trial” as opposed to “a jury trial”). The only exception occurs where one spouse has inflicted such physical and/or emotional injury to the other and the “victim” spouse seeks monetary damages for those injuries and requests a trial by jury on that aspect of the case (called “a tort claim”). This may be the case where one spouse is hospitalized from being beaten by the other spouse, or has been infected with a sexually transmitted disease resulting from the other spouse’s infidelity. (These are just two examples.) In such cases, it is up to the judge in the Family Part of the Superior Court of New Jersey to determine whether the injury inflicted rises to such a high level that a jury trial should be allowed as requested by the victim spouse seeking monetary damages from the other spouse. Jury trials in such cases are extremely rare, so you should expect that your case (if one of the less than one per cent of the divorce cases that actually go to trial) will be tried before a judge sitting without a jury.

How is a parenting plan established?

In most cases a parenting plan (when the children are with each parent and how decisions affecting the children are to be made) is established by agreement of the parents (who know each other and children best).That is the best arrangement for your children, that is, one that you and your spouse establish and fix on your own and which your attorney then reduces to writing.

For those parents who can’t come to an agreement, mediation is the next step. That involves both parents meeting together with a mediator (who may or may not be an attorney) who tries to facilitate (help) the parents reach their own agreement on where the children should live throughout the week during the school year, where they should spend their weekend time, which holidays they spend with each parent, and when they get to vacation with each parent, and also when the parents are required to consult with one another to make major decisions involving health care for and education of their children.

If mediation is unsuccessful, then the parents lose the ability to fix their own parenting plan, and a third party professional in the social science field (usually a psycholgist) is called in to recommend to the judge what parenting arrangement that professional feels is best for the children.

That sometimes is done in a less expensive fashion with a Custody Neutral Assessment (“CNA”) involving one long session with the professional who then renders a short report recommending one parent as the primary residential parent and fixing the other parent’s parenting time (no longer called “visitation”).

If that is unavailable in the county in which you are getting divorced, or if either parent rejects the CNA recommendation, a more formal, more intense and much more expensive full-blown custody evaluation by another forensic psychologist (one involved in legal proceedings) will be required. The fees to the forensic psychologist could reach $7,500 or more and, in such case, your legal fees will increase substantially as well.

Thus, while you never should agree to a parenting plan that you feel is harmful to your children, you must keep in mind that fighting over “custody” can shift money that could have been spent for your children’s college educations to your attorney to spend on his or her children’s or grandchildren’s college educations!

Therefore, before deciding to “fight” for custody, think long and hard of the many options that can be implemented in your case in establishing a parenting plan that allows your children to have maximum access to both parents (not necessarily a 50-50 arrangement, but rather one that allows both parents to be involved in an ongoing basis with the children) as such an arrangement has been shown to be better for the children’s future emotional well-being than one in which one parent is shut out of the children’s lives (something that is not going to happen even after a custody trial).

Will I have to sell my home?

The marital home is not automatically listed for sale in divorce. Rather, all options are considered. Sale is one option. Another is one spouse buying out the other (often by trading the equity (net value after the mortgage loan balance but not usually a real estate commission is calculated in) in the home against the value of other marital assets that that the other spouse wishes to keep. Another option is a deferred sale, that is, maintaining the children in the home until the children graduate high school or some other date or event occurs, with the home then being listed for sale and sold and the net proceeds (after payoff of the mortgage and payment of the costs of sale) being divided between the parties (not necessarily equally but rather as was agreed in the settlement agreement).

Which parent gets to claim the children on his or her income tax returns?

Under our federal income tax code, the parent with “custody” (the parent with whom the children spend the greater part of the calendar year) gets to claim the children’s personal tax exemptions on his/her tax returns for that year. There is one exception allowed: that is where the parent with “custody” cedes (gives) the personal tax exemption of the children (or some of them) to the non-custodial parent for that tax year or for all future tax years. This is something that is negotiated as part of the economic aspects of the divorce settlement.

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