Steering Through the Straits of Separation, from Choosing Your Attorney to Life After Marriage
If you or a loved one is looking for information on getting divorced, The Definitive New Jersey Divorce Guide was created to help make sense of a complicated matter.
First Steps: Preparing for Divorce
>> Am I ready to get divorced?
Divorce is a struggle. The process takes an emotional and financial toll, and it’s important to determine if divorce is your only option. If you’ve tried – or at least considered trying – rehabilitating your marriage, going to therapy, talking to friends and family, and – most importantly – talking with your spouse, then you may be ready to move ahead with the divorce process. Your first step should be to find an attorney who can answer your questions, help you plan for the future, and steer you through the legal straits ahead.
>> What steps should I take before filing for divorce?
After one partner files for a divorce – “serving” divorce papers to the other – the “discovery process” begins. This is the name for the process of gathering all the documents and data – especially financial information – that you’ll need to determine things like equitable distribution and alimony. You should start by gathering tax returns, bank and credit card statements, information on 401(k)s and other pension plans, and information on stocks and properties, etc. You can help your attorney by making photocopies and taking screenshots. You don’t need to have all these documents ready at your first consultation – the most important part about that first meeting is deciding if you can trust your attorney to guide you through the process ahead – but it never hurts to start preparing early.
There are a few ways to get all this information. You can ask your spouse directly in some cases. You can also send subpoenas to banks, investment houses, or retirement asset companies. The word comes from the Latin “sub” and “poena,” for “under penalty,” but in the context of present-day divorce proceedings, it essentially means “Give me the information,” and it’s a very useful tool to have at your disposal. You might also obtain depositions, sworn statements from individuals with relevant information. Some of the information you need might just be lying around the house or in your car. Don’t fret about forgetting something: an attorney can help you make a list of all the types of data you might need.
Grounds for Divorce
New Jersey recognizes 10 different “grounds” for divorce, including adultery, desertion, and extreme cruelty. The most common today is “irreconcilable differences.”
>> What are irreconcilable differences?
You can file for divorce on the grounds of “irreconcilable differences” if, for at least six months leading up to the filing, you and your spouse have had no hope of resolving your problems. In New Jersey, the judge will ask you if there are “any reasonable chances of reconciliation,” but this shouldn’t intimidate you. Filings for divorce because of “irreconcilable differences” have become common because the grounds have a low burden of proof – as opposed to something like “extreme cruelty” – and because this would be considered a “no fault” divorce, which requires no proof of wrongdoing.
Common Questions: The Cost of Divorce, in Time and Money
When trying to prepare for the costs of the divorce process, it’s important to consider time as well as money. Both follow a general rule: cost and conflict increase in direct proportion. Another way of putting it: divorce costs more the more you fight. Sometimes, the longer clients fight, the only winners are the two lawyers: they’re the ones getting paid.
>> How long will it take to get divorced?
It’s best to have divorce proceedings concluded within a year, and child custody proceedings concluded within six months. Courts are never known for moving quickly, but remember that, whether you’re the plaintiff or the defendant, you have significant control over the process: it can last as long as you want it to last. In an uncontested divorce – in which both parties enter the process in complete agreement about the terms for splitting debts and assets – you might be able to obtain a divorce in one day. You can make sure your divorce proceeds quickly, minimizing your financial and emotional burdens, if you start by coming up with an action plan. With an experienced attorney, you can discuss offering and accepting settlements, and taking reasonable positions that protect your best interests.
>> How much will it cost to get divorced?
The first cost associated with a divorce could be a consultation fee: good attorneys’ time is valuable, so it’s important to do your research, ask friends and family for referrals, and compare attorneys online before asking for a consultation. The second cost will be the retainer – this is like a down payment applied to the total fee at the end of the process. If your divorce process drags on longer than expected, the total cost might exceed the retainer. In New Jersey, retainers can range from $2,500 to $100,000, depending on the specifics of the case and the net worth of the individuals involved.
The cost of a divorce always depends on the specifics: the more factors there are complicating a divorce case, the more expensive it will be to resolve them. Some complicating factors might be property and stock assets, inheritance or lottery winnings, or child custody and support. Because of this, you must have an action plan before you file: know what you and your spouse have to contest, what you think is worth contesting, and what you can afford to contest. You likely won’t get everything you’d like in a divorce, so be prepared to negotiate reasonably and adjust your expectations.
Divorce in The State of New Jersey
Each state has unique divorce laws, and these laws could affect your eligibility for divorce. One common myth is that two people can only file for divorce in the state where they were married. This isn’t true, but there are some limitations on eligibility to consider.
>> How long do I have to live in New Jersey before filing for divorce?
Except in cases of adultery, New Jersey law requires you to have lived in the state for one year before filing a complaint for divorce. If you’ve been a resident of New Jersey for one year, you can file for divorce, even if your spouse lives in another state. If the filing party can prove adultery, the one-year requirement is waived, but this is rare. This is an issue of jurisdiction, but some also think the one-year rule provides a cooling-off period. No matter the circumstances, divorce proceedings can be costly and stressful, and heated emotions only add to this. It’s best if both parties begin the proceedings calmly.
Choosing an Attorney
>> What should I do before choosing an attorney?
Because many lawyers will charge fees for consultations, you can’t afford to waste money – and time – by going into a consultation “blind.” You owe it to yourself to research the attorneys in your area. The easiest way to assess an attorney’s experience and suitability is through online research. You’ll probably want an attorney who’s been practicing for many years, but experience doesn’t equal expertise. Look for blog posts and videos – an attorney’s way of familiarizing a client with the legal process before it begins. You should also like – or at least trust and respect – your attorney. Ask yourself: Is this someone I can work with? Does this attorney have integrity? Will this person put my interests first?
>> What kind of attorney do I need?
You don’t always want to hire the most experienced attorney: the most experienced attorney is probably also the most expensive attorney. If you know that your case is relatively simple – you’ve been married a short time, have no children and few assets, or you’ve signed an airtight prenuptial agreement – you might be better off with a less expensive attorney. You might go with a younger attorney at a well-established firm: they can always seek help from their more experienced colleagues if complications arise. If, however, you’re ending a long-term marriage, or have children or significant assets, it’s probably worth hiring the most experienced attorney you can find.
Types of Divorce: No Fault, Collaborative, Contested, Uncontested
Not all divorces are the same. The type of divorce you seek will determine the length and cost of your case.
- No Fault: A “no fault” divorce is the least acrimonious, quickest, and often most desirable option. In a no fault divorce, neither party alleges any wrongdoing. Both parties cite irreconcilable differences, agreeing that they can no longer sustain the bonds of marriage, and come to court having already agreed upon the terms of their divorce, including a division of debts and assets, and arrangements for child custody and support.
- Uncontested Divorce: Like a “no fault divorce,” parties in an uncontested divorce come to court without any intention to battle over the terms of their divorce. However, one party may still have accused the other of wrongdoing in an uncontested divorce. If you have a signed and executed agreement, you can obtain a divorce in one day in many counties of New Jersey.
- Contested Divorce: In a contested divorce, parties disagree about the terms of divorce, including division of debts and assets, and child custody and support. This usually becomes clear during the settlement phase. If spouses cannot come to an agreement during the settlement phase, they will proceed through a trial – lengthened by arguments and witnesses – and potentially an appeal.
- Collaborative Divorce: This is a process allowing spouses to avoid the uncertainty, formality, and oppositional nature of the courts. In a collaborative divorce, both parties agree to come together and negotiate the terms of their divorce, willingly, and in good faith. This is a good option if you’re still amicable with your spouse, but it isn’t advisable if either party is reluctant, or if there is little hope of resolving disputes without a judge.
Main Steps in the Divorce Process
- Consultation: After researching the divorce attorneys in your area, seek a consultation. In this meeting, you and an attorney will discuss the particulars of your case and begin to draft an action plan. You should only move forward if you trust and respect your attorney.
- Filing a Complaint: If at least one spouse has been a resident of New Jersey for one year, you can file a “Complaint for Divorce/Dissolution.” There are four types of complaints you can file in New Jersey: a “no fault” complaint because of either irreconcilable differences or at least 18 months of separation, or a “fault” complaint alleging desertion or extreme cruelty. In New Jersey, you must file in the county where the reason, or grounds, for the divorce occurred, even if you don’t currently reside in that county.
- Answering a Complaint: If your spouse has filed a complaint for divorce, this probably hasn’t come as a surprise. In either case, read over the complaint carefully and do not respond until you have reviewed all of the other party’s allegations and terms.
- Discovery: During this stage of the divorce process, both parties gather data and information, especially regarding assets and finances.
- Early Settlement Panel Hearing: During this stage, both parties and their attorneys meet to negotiate the terms of the divorce and the distribution of debts and assets.
- Trial: A judge makes the final decision about the terms of the divorce. In a contested divorce, both sides may present evidence, cross-examine witnesses, and make closing arguments.
>> How do I serve divorce papers to my spouse?
Leave it to your attorney to serve divorce papers to your spouse. The easiest way to serve divorce papers is over email. You only need your spouse to read a summons and complaint, and to sign a document; with this signature, you can file the papers with the court.
If you can’t find your spouse, an experienced attorney can help. You can file via publication – putting a complaint in a newspaper – or you can send a complaint to a last known address. Your spouse can’t simply refuse to acknowledge your complaint. If your spouse tries to ignore your complaint, you will proceed to a “default judgment” – he or she has waived the right to participate in the trial.
That said, the judge might not agree to all of your terms, even if the defendant isn’t present. Your spouse can also come in at the last minute. He or she wouldn’t be able to present evidence at that point, but could still ask questions and make arguments.
>> What should I do when my spouse serves me divorce papers?
Whether it comes as a surprise or not, if you’ve been served divorce papers, your first step should be to take a deep breath and acknowledge your situation. Then, start gathering data – bank statements and tax returns – and look for an experienced attorney. Your goal should be to get in and out of this difficult process as quickly as possible, with a plan that protects your interests, and minimizes the time and money lost to the divorce proceedings.
Common Questions about the Divorce Process
>> Should I live with my spouse during the divorce process?
If you can make arrangements to live with your spouse during the divorce process, you can save money by minimizing household expenses, and you likely can retain some ability to communicate with your spouse.
However, if you feel you can’t live with the person at all, you certainly can’t live with the person during the divorce process. If cohabitating is likely to ratchet up emotions and taint the divorce proceedings in any way, it might be best to arrange to live separately.
If domestic abuse is an issue, your safety should be your priority – not the divorce. Once the abuse has stopped, and the abuser and abused have been separated, then you can initiate the divorce proceedings. If necessary, call the police, and talk to your attorney about filing a temporary restraining order.
>> How should I file taxes during the divorce process?
You have two options when filing tax returns during the divorce process: “married-filing-jointly” and “married-filing-separate.” You can save money by continuing to file jointly, but you should direct any questions about taxes to your tax specialist, not your divorce attorney.
>> How can I alleviate divorce expenses?
Because your attorney, and any paralegal involved in the case, will bill by the hour, anything you can do to help your attorney and save time will also save you money. Use email to exchange information and documents. Even emails and text messages can cost you money, though, so try to minimize contact, within reason. You can help yourself streamline contact with your attorney by making an action plan and sticking to it.
>> Can my spouse pay for my divorce expenses?
If you aren’t employed, but your spouse is, New Jersey law requires your spouse to pay your legal fees. This levels the playing field. If neither spouse has much money or significant assets, a spouse’s family can agree to pay for additional legal work; the other spouse in this case is not entitled to any additional funds.
Division of Assets
The court considers many factors when coming to a decision about how a couple will divide debts and assets in a divorce. These include the length of time a marriage lasted and the standard of living, the potential of each party to reenter the job market, the current value of marital property and the effect of taxes on that property, and whether or not any party deferred career goals during the course of the marriage. Before you start divorce proceedings, you should know what assets will be subject to division, and how they might be divided. An experienced attorney can help you to seek – and protect – the property to which you’re entitled.
>> What is marital property?
Marital property is anything acquired by either party during the term of the marriage – from the date of the marriage to the date the plaintiff filed for divorce. Anything acquired after the plaintiff filed the complaint does not count as marital property. New Jersey law requires “equitable distribution” of marital property – including assets as well as debts.
>> How are debts and assets divided?
“Equitable distribution” considers 16 separate factors to determine the division of debts and assets. These factors include the cost and “backstory” of items. For example, if a relative gave one partner an heirloom item or anything of individual sentimental value, that wouldn’t be considered divisible “marital property.” Interspousal gifts – something one spouse bought for another – would be considered marital property.
Division is relatively straightforward: if a watch costs $10 and one spouse keeps the watch, he or she owes the other partner $5. Items associated with one partner’s hobbies will usually go with that partner – but they may have to pay “value” to the other spouse. The court will consider the 16 factors to decide who gets which contested items. Judges may sell hotly contested items, and divide the profits between plaintiff and defendant.
It’s important to think about what you value – and what you might fight for – before you get to the trial, or even the settlement stage of a divorce. Start by making a comprehensive inventory with two columns, one for each spouse. Try to be reasonable about what items will go in each column.
Large possessions, like cars, will be “equalized.” That means that if one partner owns a 2016 Aston Martin Vanquish and another partner owns a 1999 Mazda 626, the values of both cars will be added together and divided by two – each partner might keep his or her own car, but both are entitled to half of the value of both cars combined.
>> What happens to my house or other property?
If spouses share a house or other property, one of three things could happen. Either partner could buy out the other’s share and retain ownership of the property while the other moves, or both parties can sell the house and split the profit.
At this point it’s important to consider children, if you have them, and to think about their stability and best interests. Who gets custody? Where will the children go to school? What do they feel about the house? If the house is hotly contested or it seems no resolution is likely, consider how to maximize financial return for both parties.
>> Am I entitled to my spouse’s retirement assets?
The short answer is: Yes. You are entitled to any asset acquired during the term of the marriage, including retirement assets like 401(k)s and 403(b)s. However, if your spouse possesses retirement assets earned before the marriage, these are not subject to distribution – which can get complicated, especially for civil servants, teachers, etc. Furthermore, if a spouse accesses any retirement asset and uses it “for” the marriage, that asset could become subject to marital equitable distribution.
>> Am I entitled to my spouse’s inheritance?
The short answer is: No. In general, inheritance is not subject to distribution – although any money that an inheritance earns will be distributed. For example, inherited stocks would not be distributed, but their dividends would. An inherited building would not be distributed, but any rental profits would. These contributions to income also factor into decisions about spousal and child support. As with retirement assets, if one spouse uses any part of an inheritance “for” the marriage, that could change the status of that asset, making it subject to distribution.
The Child Custody Laws in New Jersey prioritize providing minor children with “frequent and continuing contact” with both parents in the event of a divorce, dissolved marriage, or dissolution of a Civil Union. In most cases, the court will do its best to achieve a joint custody arrangement, but the child’s best interests come first.
- Legal custody: “Legal custody” pertains to a parent’s legal rights and obligations over a child’s general wellbeing. For example, a parent with legal custody has the right to know about injuries and medical treatments, etc. If you have sole legal custody, you have no obligation to inform your former spouse of anything pertaining to your child.
- Physical / Residential Custody: “Physical custody” pertains only to the child’s living arrangements. There are many ways to share physical custody. Shared custody also determines each partner’s level of child support.
- Joint Custody:“Joint Custody” means both parents are involved in the child’s life. Joint Custody in New Jersey can refer either to legal custody or physical custody.
- Sole Custody:“Sole custody” refers to one parent having absolute control of the child’s life. As with joint custody, this could apply to sole legal custody, sole physical custody, or both.
>> What do courts consider when determining Child Custody?
At the beginning of a child custody hearing in New Jersey, the court will be officially unbiased – neither parent is favored. When determining legal and physical custody, however, the judge will consider many variables. While not all factors are weighed equally, some – like a history of domestic violence – could move the court to settle on a sole custody arrangement. Some of the factors courts consider in determining child custody include:
- Any history of domestic violence.
- Each parent’s ability to cooperate, agree, and communicate in decisions that affect the child.
- Each parent’s openness to receiving custody.
- Each parent’s fitness to receive custody.
- Any history of one parent barring the other from parenting time, except in extenuating circumstances (such as a history of abuse).
- The child’s relationship with siblings and parents.
- What the child wants – but only if the child is old enough to reach a reasonable decision.
- The child’s education – both the quality and continuity.
- Each parent’s home environment and the stability thereof.
- The geographic location and proximity of each parent’s home.
- The quality and quantity of time spent with the child by each parent both before the parents separated, and after.
- Each parent’s job and overall responsibilities of employment.
- The number and age of the children involved in the custody case.
>> How can I increase my chances of obtaining the Child Custody agreement I want?
Child Custody cases are distinct from other areas of Divorce and Family Law because of one factor: instead of seeking an equitable arrangement between just two people, the court works on behalf of a third party: the child or children. While your interests in a Child Custody case are just as legitimate as your spouse’s, it’s important to remember that the child always comes first. You aim to show the court that you can provide a safe and nurturing environment for the child, that your behavior and lifestyle support he child’s interests and development, and that you’ve taken an active interest in your child’s life. Get to know their teachers and coaches, and stay on top of grades and hobbies. Be an excellent parent, provider, and role model, and you’ll be likely to come to a fair and satisfactory Child Custody arrangement.
The “New Jersey Child Support Guidelines” – essentially a calculation – determine child support obligations, accounting for children’s health insurance, education, and daycare, as well as the gross income of both spouses. The Guidelines, however, only apply to couples whose combined net income is between $8,840 and $187,200 (or between $170 and $3,600 per week).
If parents have a net income above $3,600 per week, the court will add a discretionary amount based on factors including parents’ assets and sources of income, standards of living, the child’s specific needs, and each parents’ ability to earn a living. If the parents’ combined net income is lower than $170 per week, the court will award discretionary support based on the child’s needs.
The Guidelines provide two different sets of “worksheets” to determine child support obligations. If you have physical custody of your child less than 28% of the time, or 105 nights a year, then you will use the “sole parenting worksheet,” and if you have custody for more than 28% of the year, then you will use the “shared parenting worksheet.” This will be a factor in determining your level of child support.
Child support payments are averaged out, which is important to keep in mind, as child care costs change over time. The law presumes that earlier child support payments will generate a surplus to be used later. Because these calculations are based on an average of 17 years, older children can be a complicating factor. As a rule, when the child is 12 or older at the time of the support calculations, the final figure should be adjusted upward by 14.6%.
>> How long will I be expected to pay or receive child support?
In New Jersey, child support calculations are based on providing care for a child from birth to the age of 17. In some circumstances the court will extend child payments while the child is in high school or secondary school. Once the child graduates and leaves for work or college payments typically cease, but the court has the discretion to extend payments if the child is still living at home.
>> Do the Guidelines apply in all cases?
New Jersey courts operate under the presumption that the Guidelines explained above will apply, but there may be extenuating circumstances, such as:
- Unreimbursed medical expenses of either parent.
- One household having six or more kids.
- The child’s educational expenses.
- The child’s special needs.
If the court deviates from the Guidelines for any reason, it must state the fact in the Court’s Order and/or on the worksheets mentioned above.
New Jersey recognizes four types of alimony. It’s important to know what’s available – and what your spouse might expect from you.
- Open durational alimony: This is awarded in cases of long-term marriages – at least 20 years long. This assumes that the paying spouse will cease payments upon retirement., although payments might continue in some cases.
- Limited durational alimony: This is based on a specific, pre-determined time frame. A partner ending a 12-year marriage might expect to pay alimony for the next 12 years.
- Rehabilitative alimony: This helps one spouse return to the workplace. For example, a former professional who left the workplace during a marriage might expect rehabilitative alimony to help him or her seek recertification or reinstatement of a license.
- Reimbursement alimony: One spouse is reimbursed for monies spent on the other. For example, if one spouse pays for the other to pursue a Master’s degree, and that spouse leaves, he or she might be required to reimburse the partner for those costs.
The type of alimony appropriate for any given case is relatively easy to determine. The real point of contention, of course, is generally not the type of alimony, but how much alimony a spouse will pay. An experienced attorney can help you determine the type and amount of alimony you might seek, or be expect to pay.
>> How am I going to get alimony if my spouse isn’t working?
You can’t force your spouse to give you money he or she doesn’t have – but you should be careful to keep track of the arrears, or money owed. Communicate with your spouse – if payments stop or decrease, you should remind your spouse of his or her obligation.
Know your options. You might ask the court to enforce the order. However, if your spouse is legitimately incapable of paying the court-ordered alimony – if he or she has lost a license, or become physically incapable of holding a former job – it won’t be worth your time to wrangle over the issue in front of a judge. In some cases, it will be better to work with the individual to adjust the original alimony order, acknowledging a change in circumstances.
>> What circumstances could end alimony?
If person receiving alimony begins cohabitating with someone, the former partner paying the alimony might have grounds to end those payments. This doesn’t mean that a divorced person receiving alimony can’t pursue other adult relationships, but if those relationships move toward material interdependence – if these people share bank accounts or make joint purchases, or even if a new partner starts coming over to the alimony recipient’s house to cut the lawn – the alimony payer could ask a judge to end that payment obligation. Social media content – especially Twitter, Instagram, or Facebook posts – often play a big role in these cases.
Life After a Divorce
After you reach a settlement in a divorce case, you can move on with your life, caring for your children, property, and finances, pursuing hobbies, passions, and career goals, and entering into new relationships. You’re legally bound by the terms of your divorce settlement agreement, but, of course circumstances do change, and in some cases you can change the terms of your settlement, too.
>> Can I change a settlement agreement?
If you’ve already been divorced and have a settlement agreement, it is possible to amend this. You must demonstrate a “change in circumstances,” however. For example, you might have lost a job or changed careers. If this happens, you might be able to reduce alimony or child support payments. If some factor changes the balance of child custody – for example, if a child’s interests or preferences or schooling situation have you caring for a child more often than the settlement agreement stipulated – you might reduce your child support payments. Many things could lead to a material “change in circumstances.” If you feel this has happened, you can appear before a judge and amend the initial settlement agreement.
If you’d like to amend a child custody plan, start by keeping a meticulous log of your contact with children. You should talk with your former spouse – if you can ask for an extra night, hour, dinner, or weekend, do it – but do not discuss any custody issues with your children. If you cannot talk with your spouse, whether because of a restraining order or any other reason, you may want to consult an experienced attorney. Some divorced parents will try to increase custody time to decrease support payments, not out of a legitimate desire to spend more time with their children. Be prepared to argue, with evidence, for the rationale behind amending your agreement.