If you are reading this, it is likely that you believe your marriage cannot be saved. Often the spouses have already attempted marriage counseling, considered other ways of solving their problems, but at least one of the spouses has come to the conclusion that the marriage is over.
Divorce, unless undertaken by complete agreement of both spouses, can and usually is an incredibly emotional and often down-right draining experience. In some cases it can become totally debilitating at times for either or both participants.
Yet, during the often exacting divorce process, you will be called upon to make numerous major life decisions that will likely impact the rest of your life. This is arguably the single best reason to hire an attorney. Our overarching objective is to minimize your ordeal and maximize your custody, visitation, alimony, child support and equitable distribution objectives.
Our goal is to do a great deal more than just give you the necessary legal advice to get you the best possible outcome for your financial and/or child related issues. We will also try our best to give you the kind of practical guidance you likely need to navigate the emotional roller coaster you are about to delve into in order to emerge from this process as unscathed as possible.
In New Jersey, pursuant to NJSA 2A:34-1, a divorce judgment can be obtained based on one of nine different grounds: the marriage is irretrievably broken; one of the spouses committed extreme mental or physical cruelty against the other, a spouse committed adultery, or he/she desertion the other party, a spouse voluntarily induced addiction or drunkenness, the spouses have lived separated for at least 18 months in different residences, one of the spouses has been incarcerated for at least 18 months, or institutionalization for at least 24 months, or finally, one of the spouses had engaged in deviant sexual conduct.
Since 2007, New Jersey joined the ranks of no-fault divorce states, when the legislature adopted the “irreconcilable differences” ground for divorce. What this means to you is that frankly, to the court it just does not matter why you are seeking a divorce. Fault, that is who did what to whom is not going to be a factor in your divorce unless there is a justifiable reason for it. Such reasons may include, by way of example, certain types of custody disputes, child neglect or abuse allegations, or a spouse’s spending marital assets on an adulterous affair. The former may impact child custody and time-sharing, and the latter may impact the equitable distribution of your financial assets and liabilities.
The Initial Stages:
Many divorces are settled before court papers are ever filed. They can be resolved by both parties working together or with the help of a single neutral mediator (preferably a qualified attorney). Alternatively, the parties’ attorneys negotiate a settlement and reduce it to writing in a comprehensive “property settlement agreement”.
Assuming that pre-filing settlement isn’t possible, the first step in your divorce is to prepare the initial papers. If you are the spouse filing for divorce, that will include a Complaint for Divorce and several other related, obligatory documents.
After being served with a complaint, the defendant spouse in any divorce action has a limited number of days to respond. The response can be by an Answer or an Answer with Counterclaims.
After all initial pleadings have been served and filed, the next step requires automatic financial disclosure. The parties, either separately or working in conjunction with one another, must produce all of their financial documents. You will receive a document checklist outlining each and every item covered by this rule. All of the assets and liabilities should be determined at the time you are filling out your financial disclosures, and copies of the actual statements, accounts and records should be secured in advance.
Settlement, ESP and Economic Mediation:
If possible, it is always better to settle your differences amicably than it is to fight it out in court. Litigation can be expensive, stressful and time-consuming. Recognizing this, all New Jersey Courts mandate that following discovery, all cases must be presented by the attorneys to an Early Settlement Panel made up of experienced court-appointed professionals. The Panel will recommend a resolution of the case to both parties.
If either party declines the Panel’s recommendations, in a last effort to facilitate a settlement before trial, the Court will then obligate the parties to attend economic mediation.
If all settlements attempts fail, there is little choice but to have a trial, where the judge assigned to the case hears all evidence and decides all remaining disputes.
Child Custody in New Jersey
In New Jersey, custody determinations made by Superior Court Judges are based on “the best interest of the child.” To determine what is in the best interest of a child, a court may consider the following statutory factors:
• parents’ ability to agree, communicate, and cooperate on matters relating to the children;
• parents’ willingness to accept custody and any history of unwillingness to allow visitation, unless such unwillingness was based on substantiated abuse;
• interaction and relationship of the children with their parents and siblings;
• any history of domestic violence;
• safety of the children and the safety of either parent from physical abuse by the other;
• preference of the children when they are of sufficient age and capacity to make a decision;
• needs of the children;
• stability of the home environment offered;
• quality and continuity of the children’s education;
• fitness of the parents;
• geographical proximity of the parents’ homes;
• extent and quality of the time spent with the children prior to and subsequent to the separation;
• parents’ employment responsibilities;
• ages and number of the children.
In some cases, the Court may also interview the children themselves or appoint a guardian to represent their interests.|[hide]
Child Support in New Jersey
Child support is a court-ordered payment by one parent to the custodial parent of a minor child, typically after divorce or separation. In New Jersey, the amount of child support that parents are obligated to pay is based on the income of both parents combined. Courts consider the following factors in determining the amount and duration of child support:
• needs of the child
• standard of living and economic circumstances of each parent
• all sources of income and assets of each parent
• earning ability of each parent
• need and capacity of the child for education
• age and health of each parent and child
• income, assets and earning ability of the child
• responsibility of the parent for court ordered support of others
• reasonable debts and liabilities of each parent and child
• any other factors the court deems relevant and just
New Jersey law generally requires both biological and adoptive parents to support a child until:
• The child reaches the age of majority (support may be required for a longer period if the child has special needs or is in college)
• The child goes on active military duty
• The child is declared emancipated by a court
• Parental rights and responsibilities are terminated
If a parent falls behind on his or her child support payments, the matter may be addressed in an enforcement hearing where the parent will be given an opportunity to explain why he or she has not kept up with the court-ordered payment schedule. If that parent still does not pay, steps to enforce the order will be taken. These may include garnishment of wages, tax refunds, or lottery winnings. These may also seizure of assets, such as insurance proceeds, cars, or real estate.
Child Visitation in New Jersey
Visitation or “parenting time” refers to the right of a non-custodial parent to spend time with a child on a scheduled or regular basis. New Jersey law presumes that a child’s best interests are generally served by having strong relationships with both parents. Thus, under New Jersey law, when one parent is granted primary custody of a child, the other parent is generally granted reasonable visitation unless a court determines that a parent’s conduct would have a substantial adverse effect on a child.
General Approach to Equitable Distribution
The court generally employs a three pronged approach to equitable distribution. First, it decides what is marital property and what is separate property. Next, the Court decides what is the value of all marital property to be distributed between the parties. Some assets are valued easily (bank accounts, stocks and cash). Other assets will require an expert’s opinion to set a value, such as real estate, business interests, or a professional license. Finally, the Court will apply the relevant statutory factors in deciding how to distribute the valued marital assets fairly among the spouses.
Separate property include the following categories of assets:
Marital property on the other hand is defined as any property which is not within the definition of separate property, and is any property which is acquired by either party during the marriage, regardless of who actually holds title to the asset. For example, real estate, bank accounts, pensions, stocks, automobiles, contract rights, businesses, professional licenses, seats on the stock exchange, and precious metals are all marital property subject to equitable distribution.
Statutory Factors Under the DRL
At the heart of equitable distribution law lies the determination as to who receives what. At present, under NJSA 2A:34-23.1 New Jersey courts apply definitive statutory factors to decide what each of the divorcing spouses will receive at their divorce by way of equitable distribution. It is noteworthy that the court need not consider each factor and there is no single factor which is dispositive of the distribution of marital property.
Factor 1: Duration of the marriage or civil union.
Factor 2: Age, and the physical and emotional health of the parties;
Obviously, the age and health of each spouse will be a factor, as a spouse who is unable to work due to health reasons or loss be unable to secure a profession due to age may result in a greater award of marital property. Any maintenance award must be taken into account as well.
Factor 3: The income or property brought to the marriage or civil union by each party;
Factor 4: The standard of living established during the marriage or civil union;
Factor 5: Any written agreement of the parties before or during the marriage;
Factor 6: The economic circumstances of each party when the division of assets is made;
Factor 7: The income and earning capacity of each party, including training and education and experience;
Factor 8: Contributions made to the training and education of the other party;
Factor 9: Contribution made by each party to the acquisition, dissipation, preservation or value of marital property;
For example, wasteful dissipation of marital assets by a spouse may be offset by awarding the other spouse a greater share of the remaining assets. What constitutes wasteful dissipation is a question of fact for the court to decide. Likewise, transferring assets to a third party for less than those assets are worth invites the court’s scrutiny over the transaction. If the court determines that the transfer was undertaken to deprive a divorce spouse from the value of marital assets, the transferring party is subject to severe sanctions. The court can, in such cases, award a higher percentage of the remaining assets to the other spouse. In addition, the victimized spouse may file a separate action to undo the transfer. Such separate action sounding in “fraudulent conveyance”, can and should be joined together with the divorce action.
Factor 10: Tax consequences to each party.
The court may consider the tax impacts to the parties when deciding how to distribute marital assets. Expert testimony will generally be required to prove such impact to the court. In theory, the court will try to minimize the taxes paid by each party, thereby increasing the size of the after tax marital estate.
Factor 11: Present value of the property;
Factor 12: The need of a parent who has physical custody of a child to own or occupy the marital residence or residence shared by the partners in a civil union couple and to use or own the household effects;
Factor 13: The debts and liabilities of the parties;
Factor 14: The need for creation, now or in the future, of a trust fund to secure reasonably foreseeable medical or educational costs for a spouse, partner in a civil union couple or children;
Factor 15: The extend to which a party deferred achieving their career goals; and
Factor 16: Any other factors which the Court may deem relevant
The court may consider any other factor in its discretion. Marital fault other than dissipation of marital assets plays no role in equitable distribution, absent the most egregious of circumstances.
Under New Jersey law, mandatory financial disclosure is required for all income and assets without regard to whether these are marital or separate. Disclosure is both mandatory (case information statements) and permissive (interrogatories, subpoenas, requests for production and depositions). Each case should be carefully strategized to ensure complete discovery from the spouses and third parties alike. Only on a “full record” can fairness and equity be decided in an equitable distribution case.
New Jersey Alimony
It is critical to position an alimony case properly from the inception of the process, and to marshal early on all facts and proofs conducive to meeting the client’s objectives.
In New Jersey, alimony can be a significant financial component of any divorce case. State law recognizes a variety of potential support mechanisms designed to ensure the maintenance of the other spouse in appropriate cases. These generally include pendente lite support awards designed to maintain the status quo during the pendency of the divorce action, rehabilitative alimony, term alimony, reimbursement alimony and permanent alimony.
While New Jersey’s alimony statute requires consideration of up to 10 different factors, three core ones are (i) the duration of the marriage, (ii) the actual financial needs of the spouse who seeks support and (iii) the financial ability of the spouse from whom support is sought.
Alimony issues should be tackled early in the litigation to maximize the chances for achieving the client’s objectives. In appropriate cases, attorneys will retain employability experts who, for example, may provide testimony regarding imputation of income to deliberately underemployed or unemployed spouses, who in reality should not be seeking alimony, but do so nevertheless. Such experts may also prove instrumental in convincing the court that the paying spouse should be earning substantially higher wages than he or she claims to be earning, and that therefore his or her alimony responsibility should be greater.