New Jersey Family Law Frequently Asked Questions
1. What is Legal Separation?
Although New Jersey law does not provide for a formal legal separation, it is possible for you and your spouse to agree to live separately and to resolve all financial and child related issues in a written agreement. This agreement may be incorporated into a Judgment of Divorce in the event you or your spouse files for a divorce at a later time. If you cannot reach an agreement, you can obtain a divorce from "bed and board" (sometimes called "separate maintenance"). This means that you will continue to be married although the Court may grant many other rights normally incidental to divorce.
2. Can I force my spouse to move from our residence (or can I be forced to move from our residence)?
The Court will rarely compel either party to leave the marital home until the divorce is final, except in the case of domestic violence. Only in unique circumstances would a party be compelled to leave the home in the absence of domestic violence. If you are (or if your spouse is) the victim of physical abuse or harassment, you (or they) should call the police for protection. You (or your spouse) may get an emergent order from either a Municipal or Family Court judge to remove your spouse (or you) from the residence immediately. A hearing should be held within ten (10) days to determine whether there is enough evidence to keep your spouse (or you) from returning to the home on a permanent basis. If such an order is granted, your spouse (or you) will not be permitted to return to the home except to retrieve personal belongings, and then, only with a police escort.
3. Does the reason or grounds for divorce matter?
The fault or wrongdoing of a party in a divorce action has no bearing on how assets that were acquired during a marriage will be divided. The Court may, but rarely does, consider the reason(s) or grounds for divorce as a factor in determining alimony.
4. If I do not want to be divorced, can I prevent it from happening?
No. If one spouse wants out of the marriage, the marriage will end, with or without the other's consent. There are several grounds for divorce. The most recent was introduced in 2007 and is based upon "irreconcilable differences." Another "no-fault" ground is based upon 18 months of living separate and apart. There are also fault grounds such as adultery, desertion and extreme cruelty. The party who does not want the divorce can delay the divorce, but ultimately cannot stop a divorce.
5. Will alimony apply in my case?
That depends on a balance of all circumstances of the marriage including the earning capacities of the parties, the age and physical health of the parties, the length of the marriage, the lifestyle during the marriage and the distribution of assets and liabilities upon dissolution of the marriage.
6. How is child support calculated?
Both parents have an obligation to support their children. The Child Support Guidelines apply in all matters. Each parent's actual income (including alimony) and deductions are considered in determining the basic child support award determination. Each parent's share of child support is calculated with their share of the combined income, adjusting that number for expenses associated with visitation, health insurance and/or child care and special deductions for other family court ordered obligations, certain government benefits, etc. If the combined net income of the parents is more than $187,200.00 per year, the guidelines are applied up to $187,200.00 and a discretionary amount based upon the remaining family income is added to that amount.
7. Child support ends when a child reaches 18, right?
No. There is no fixed age in New Jersey when child support stops. Once a child turns 18 and/or becomes financially independent, one or the other parent may file papers with the Court asking that the child support order be terminated or adjusted. The Court decides whether to emancipate the child and terminate child support.
8. Who determines the appropriate custodial and time-sharing arrangement?
If the parties cannot reach an agreement, the Court determines a custodial and time sharing arrangement that is in the best interests of the child(ren). The Court considers evidence received through testimony from each parent, experts (if retained) and any other individual who may have direct knowledge of each party's parenting ability and may consider any other relevant evidence.
9. Can I move from New Jersey with our child/children?
A parent desirous of moving from the state of New Jersey with a minor child or children may do so only if the other parent agrees or if the other parent does not agree with an appropriate order permitting the move entered by the New Jersey Court. If the other parent objects to the relocation of the child or children to another state, the law provides that removal will be permitted where the proofs demonstrate that (1) there is a good faith reason for the move; and (2) the move will not be inimical to the child's or children's best interest.
10. Are assets and liabilities automatically divided 50/50?
No. Assets and liabilities are equitably (or fairly) distributed based upon sixteen (16) factors listed in N.J.S.A. 2A:34-23.1(equitable distribution criteria). Each factor may not apply to each case. Equitable distribution requires that each asset or liability be identified, valued, and equitably (or fairly) distributed. Generally, any asset or liability acquired or incurred prior to marriage is not eligible for distribution. Any asset acquired by gift from anyone other than a spouse (third party gifts) or inherited during the marriage is exempt from distribution.
11. What will my divorce cost?
It is not possible to advise what the cost will be in any divorce. Attorneys must charge for the actual time devoted to representing any individual in a divorce. A written agreement detailing the attorney's hourly rate, the amount of the retainer (an advanced payment to hire the attorney or law firm), the services that will be provided, the services that will not be provided, the frequency of billing, responsibility for the payment of costs, and the attorney's and client's responsibilities must be signed by the attorney and the client.
12. What happens if circumstances change after my divorce?
Alimony and child support orders may be revised and altered from time to time as circumstances may require. Custody and parenting time orders are always subject to modification based upon a child's or children's best interests. Assets distributed to each spouse and responsibility for the payment and satisfaction of liabilities by each spouse are not subject to modification except in unusual and extraordinary circumstances.
Disclaimer: This site and information contained herein are included for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.