Family Law Articles
New Jersey Divorce Basics
Maryann J. Rabkin, Esq.
Q: How our divorce proceedings initiated in the State of New Jersey?
Divorce proceedings begin with one party filing a Complaint for Divorce in the Superior Court of New Jersey in the county in which they reside.
Q: What is an uncontested divorce proceeding?
A divorce proceeding when all of the issues with respect to children, support(spousal and child support), property, debt and all other issues have been resolved by way of an agreement. Note: A complaint for divorce still must be filed by at least one party.
Q: Do you have to be a New Jersey resident at the time you file for Divorce?
No. Only one party has to reside in the State of New Jersey at the time a Complaint for Divorce is filed. However, with limited exception, the party residing in New Jersey at the time of the Complaint must have resided in the State of New Jersey for at least one year.
Q: How long does it take to obtain a divorce in New Jersey?
By mandate from the Administrative Office of the Courts in New Jersey, all divorce proceedings should be concluded within 12 months of the date that the divorce complaint was filed. If cases become resolved by agreement, the divorce proceedings may and should conclude within the 12 month time frame, however, depending on the complexity of the case, cases may require an extension beyond 12 months.
Q: What types of custody arrangements typically exist in New Jersey?
There are no “typical” custody arrangements, rather, each case is fact sensitive and custody and parenting time are resolved with consideration of what is in the child(s) best interest at the time.
As to the types of custody arrangements, New Jersey utilizes the following definitions when addressing issues with respect to custody and parenting time:
- Legal Custody: Legal Custody is custody with respect to the decision making surrounding the child(ren). Generally speaking, both parents have the right to be involved in major decisions such as the medical decisions, educational decisions, and other decisions that significantly impact the child(ren). While, there are exceptions to this general rule, this would be an issue that would require a detailed consultation with an attorney who specializes in the area of matrimonial law.
- Physical Custody: Physical custody means the right to have the child with you on a day-to-day basis. There is joint physical custody in which both parties enjoy an equal amount of parenting time with the child(ren). There is sole physical custody in which one party retains physical custody of the child without the other parent being provided any overnight parenting time. In most matters there is usually a variety of shared physical custody in which one parent designated as parent of primary residence and the other parent enjoys a scheduled amount of parenting time.
Q. Can I move out of the State of New Jersey with my child(ren)?
In 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.
There are different standards that apply and your attorney will evaluate the specific facts of your case and provide you with the information necessary to evaluate your relocation.
Q: Who retains the house after we our divorced?
Each case is fact sensitive and in accordance with New Jersey's Equitable Distribution Statute, N.J.S.A. 2A: 34-23.1, courts will consider the following factors:
- The duration of the marriage;
- The age and physical and emotional health of the parties;
- The income of property brought to the marriage by each party;<
- The standard of living established during the marriage;
- Any written agreement made during or before the marriage concerning property distribution;
- The economic circumstances of each party at the time of the division of property;
- The income and earning capacity of each party;
- The contribution of each party to the education, training or earning power of the other;
- The contribution of each party to the acquisition, dissipation, preservation appreciation or appreciation in the amount of the value of the marital property;
- The tax consequences of the proposed distribution in each party;
- The present value of the property;
- The need of the parent who has physical custody of a child to own or occupy the marital residence and to use or own the household;
- The debts and liabilities of parties;
- The need for creation, now or in the future, of a trust fund to secure reasonable medical educational costs for a spouse or a child; and<
- Any other factors the Court may deem relevant.
Your attorney will be able to evaluate issues with respect to division of marital property after review of the financial documents you provide, including obtaining the necessary appraisals if any, and verification of the values and liens associated with same.
Q: Will my spouse have to pay me child support?
Child support is generally based upon the New Jersey Child Support Guidelines which are included in the New Jersey Rules of Court. The guidelines are based upon the incomes of the parties, the parenting time and/or custody arrangement ordered or agreed to, and other factors such as health insurance benefits paid by either party, government benefits received on behalf of a child, as well as many other considerations. After the initial support amount is determined, modifications may be sought by either party based upon a change of circumstances.
Q: Types of Alimony in New Jersey?
There are four types of alimony in New Jersey:
- Permanent alimony: Permanent alimony that is paid for an indefinite time, subject to review upon retirement and other substantial changes in circumstances, and is most often seen in cases of long-term marriages;
- Rehabilitative alimony: Limited duration is a set time frame where spousal support will be paid and is often utilized in marriages of shorter duration;
- Reimbursement alimony: Reimbursement alimony is rare and when it is awarded(or agreed upon) it is typically in situations where one spouse has financial supported or sacrificed to assist the other spouse in pursuit of a degree and then before that degree has provided a financial benefit to the marriage the parties separate;
- Rehabilitative alimony: Rehabilitative alimony applies where the spouse who earns less seeks a degree and has a plan to obtain a new earning ability;
Q: Will my spouse have to pay my attorney's fees?
Generally, the answer is "no" and each party is responsible to pay their own attorney. However, there are factors for the Court to consider when deciding whether your spouse will have to contribute towards your counsel fees. The parties can also agree or be ordered to utilize a joint asset to pay their respective counsel.