Family Law FAQs
How do I decide if I want a divorce?
Making a decision to file for divorce can be a difficult one. If you are considering filing for divorce, you should consult with an experienced family law attorney to discuss your rights regarding alimony, custody, parenting time, child support, equitable distribution of assets, and the like. You should consider various factors, including whether you still have feelings for your spouse, is there a history of domestic violence or substance abuse, whether you have tried counseling, how a divorce or staying in an unhappy marriage can affect your children, and other factors that may be relevant to your particular matter.
Under what grounds can I file for divorce?
When filing for divorce, you must state grounds for dissolving your marriage. New Jersey has various fault and no fault grounds in which a party can request a divorce.
The no fault grounds are separation and irreconcilable differences. In order to file under separation, a couple must live separately for a period of eighteen months. For couples who do not wish to wait for the 18 month requirement to lapse, irreconcilable differences is a no fault option that allows you to file for divorce under the grounds that you have experiences “irreconcilable differences” for at least six months prior to filing for divorce. Irreconcilable differences means that the couple can no longer get along and there is no possibility of reconciliation. You can experience irreconcilable differences while continuing to live with your spouse. Thus, many couples file for divorce while continuing to reside together.
The fault grounds include extreme cruelty, adultery, desertion, voluntary addiction or habitual drunkenness, imprisonment, institutionalization, and deviant sexual conduct.
Generally speaking, New Jersey is considered a no-fault state. The fault or wrong-doing of a party generally has no impact on the way in which assets are divided or alimony awarded, with the exception of very limited circumstances. A consultation with an experienced family law attorney will provide insight into what grounds for divorce you should file under.
How will our marital assets be distributed?
New Jersey is an equitable distribution state. What this means is that assets subject to equitable distribution will be divided equitably and fairly, not necessarily 50/50. Assets that were acquired prior to the marriage are considered pre-marital and generally not subject to equitable distribution. Assets that are inherited during the marriage or gifted to one spouse are also considered exempt from equitable distribution, provided these assets have not been commingled with marital property.
How will the court determine custody and parenting time?
When parties are unable to reach a resolution regarding custody and parenting time of their children, the court will make a determination by focusing on what is in the best interests of the children. In making this determination, the court considers various statutory factors including:
the parents’ ability to agree, communicate and cooperate in matters relating to the children;
the parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse;
the interaction and relationship of the children with their parents and siblings;
any history of domestic violence;
the safety of the children and the safety of either parent from physical abuse by the other parent;
the preference of the children when they are of sufficient age and capacity to form an intelligent decision;
the needs of the children;
the stability of the home environment offered;
the quality and continuity of the children’s education;
the fitness of the parents;
the geographical proximity of the parents’ homes;
the extent and quality of the time spent with the children prior to and subsequent to the separation;
the parents’ employment responsibilities; and
the ages and number of the children.
In making this determination, the court puts a strong focus on what has the status quo during the marriage (ie. Who was primarily responsible for caring for the children when the marriage was intact?). Further, the court may order an custody/parenting time evaluation in which a forensic psychologist will interview the parties and the children, conduct several tests, and submit an evaluation recommending what custodial and parenting time schedule will serve the best interests of the children.
I am eligible to receive alimony from my spouse? Will I have to pay alimony to my spouse?
During and after a divorce, a spouse may need financial support from the other. This is known as alimony. There are different types of alimony including open durational alimony, limited duration alimony, reimbursement alimony, and rehabilitative alimony. A spouse may also be required to pay pendente lite alimony, which means alimony payments made during the divorce proceedings.
In making a determination of alimony, the court considers various statutory factors, including:
the actual need and ability of the parties to pay;
The duration of the marriage or civil union;
The age, physical and emotional health of the parties;
The standard of living established in the marriage or civil union and the likelihood that each party can maintain a reasonably comparable standard of living, with neither party having a greater entitlement to that standard of living than the other;
The earning capacities, educational levels, vocational skills, and employability of the parties;
The length of absence from the job market of the party seeking maintenance;
The parental responsibilities for the children;
The time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, the availability of the training and employment, and the opportunity for future acquisitions of capital assets and income;
The history of the financial or non-financial contributions to the marriage or civil union by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities;
The equitable distribution of property ordered and any payouts on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair;
The income available to either party through investment of any assets held by that party;
The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a non-taxable payment;
The nature, amount, and length of pendente lite support paid, if any; and
Any other factors which the court may deem relevant.
The application of these factors is very fact sensitive. Typically, the two most important factors are the length of the marriage and the difference in incomes of the parties. Determining the amount and duration of alimony, if any, can be complex. There are no set guidelines or formulas in the State of New Jersey to compute alimony. It is important to consult with an experienced family law attorney who will understand how to apply the alimony factors and relevant case law to your particular matter.