New Jersey Divorce Frequently Asked Questions

The divorce process can be confusing. If you are considering divorce or are already going through it, you probably have questions. In the following sections, we answer several common questions about divorce in New Jersey.

Is New Jersey a No-Fault or Fault Divorce State?

In New Jersey, it is possible to file for a no-fault or a fault-based divorce. The law allows for a no-fault divorce when irreconcilable differences have caused the breakdown of the marriage for at least six months, and it appears there is no reasonable prospect of reconciliation. You can also file fault-based grounds for divorce which include things such as adultery, willful and continued desertion, drug addiction, extreme mental cruelty, imprisonment, and deviant sexual conduct.  There are pro’s and con’s depending on your situation strategically as to making the decision to file no fault vs. fault; they are also not mutually exclusive concepts.  Meaning, you could file under both.

What Is the Difference Between a Contested and Uncontested Divorce?

In an uncontested divorce, the spouses agree in advance with respect to all of the legal issues involved in ending their marriage.  If spouses disagree on one or more issues, such as those listed here, it is called a  contested divorce until an agreement is reached on those issues.  Interestingly, a lot of people think that they are in agreement on the issues, but they are only considering the major issues like the house, cars, visitation, etc.  There are so many other issues that most people don’t even know to know about that an experienced attorney will highlight that needs to be determine (like life insurance and college contribution as one example).

Is It Possible to Get Legally Separated In New Jersey?

No. There is no formal legal separation in New Jersey. However, that does not mean that you cannot live separately, but this can become a very tricky situation quickly if you do not map out a plan before you physically separate. You may do something unintentional that will not be to your benefit later, so consider speaking with a qualified attorney first.

Can I Divorce Online In New Jersey?

It is not possible to get a divorce online in New Jersey. You will ultimately need to go to court (or have your attorney be your agent) to finalize the divorce and file all the requisite documentation.

Are There Risks with A Do-It-Yourself (DIY) Divorce In New Jersey?

There are many risks associated with so-called “DIY” divorces. However, perhaps the biggest risk is that you could overlook a key issue or agree to a settlement that cannot be undone after your divorce is final and will impact you well into the future. It is to your benefit to at least speak with an attorney before you sign on the dotted line.

What Should Divorcing Spouses In New Jersey Know About Divorce Mediation?

Voluntary mediation can be a very  effective tool for resolving divorce-related disputes. But it is not for everyone. If you and your spouse are willing to work together, then it may be a good option. With that said, some couples just cannot agree no matter what and, in those cases, it is sometimes more efficient and cost-effective to go through the formal court process first to meet the Judge, and then have both parties having more insight into the judicial system come back to the settlement table to try to work it out.

If I Have to Take My Divorce to Court, Will My Finances and Family Issues Be Made Public?

If you take your divorce to court, certain information about your finances and family issues may be public record, but there are other portions that are kept confidential.  It is not easy, however, for someone to look up your divorce documents with the Court, as there is a process they have go through, but technically, it is a public record.

Is New Jersey A Community Property State?

No. New Jersey is an equitable distribution state. Unlike in community property states, marital assets are not necessarily divided equally but rather are divided in a way that is deemed “fair”. fair. The same is true for marital debt. There are itemized factors under the law that must be considered to determine the appropriate percentage split. However, in long-term marriages, it is customary to first discuss a 50/50 split and if the facts of your case warrant, move away from that to a more unequal distribution based on all the circumstances.

What Is the Difference Between Marital Property and Separate Property?

Generally speaking, marital property are those assets and debts acquired during the marriage. , Separate assets are those that existed prior to the marriage.  Marital assets are subject to equitable distribution in a divorce. The same goes for marital debt.  In other words, debt your spouse brought to the marriage may be considered separate, while debt incurred during marriage is marital. Notwithstanding the above general rule, there are in fact many exceptions that come up frequently in divorce cases , so it is smart to speak with a divorce attorney before assuming anything.

Will We Have to Sell Our House During Our Divorce?

Not necessarily. As part of divorce negotiations, what to do with the house and the timing of when to do it will be discussed in relation to everyone’s short and long-term plan and the best interests of any minor children. Sometimes parties agree to sell and in other cases, one spouse may buy the other out. The marital value of the house, less any marital debt associated with it, will be determined to figure out each party’s appropriate share regardless of if it is a sale or spousal buyout.  If one of you had the house prior to the marriage, or even the engagement, that is something you will want to talk to an attorney about because the value of the property will be calculated differently.

What If My Spouse and I Both Want the Same Keepsake or Other Property?

If there is a sentimental keepsake or other property at issue for either of you, it first must be determined whether it is marital property or can be considered separate property. If it is marital property and keeping it is a priority for you, you should alert your attorney so it can be taken into account in settlement negotiations. If you and your spouse do not agree, the judge will ultimately have to make the call as to who gets it, or make the call that neither of you should have it.

If I Own (Or My Spouse Owns) A Business, How Will It Be Handled in Our Divorce?

A business is considered an asset, so the first step is to determine whether the business is a marital asset or a separate asset. If the entire business is a marital asset, then it needs to be determined the value of the spouse’s interest (and any ownership in a brick and mortar) in the business and/or the cash flow that it generates.  Once a value is placed on the spouse’s interests, then a negotiation can happen about the appropriate percentage the other spouse should receive; it is likely to be well under fifty percent.  If the business is deemed separate property, then a discussion will need to be had whether the entire business is exempt from equitable distribution, or the calculation of the value of the owner spouse’s interest is only determined from the date of the marriage.  When there is a business involved in a divorce, it can get tricky fast and it is critical that you have an experienced divorce attorney educate you and navigate you through the process.

How Are Retirement Accounts Distributed in Divorce?

It is the same approach as debt and property. We first determine what portion, if any, is marital or separate. Then, if there is a portion subject to be divided, we have to figure out the amount that is to be divided. If it is a pension or annuity, we may need to obtain a valuation via an expert to assign a monetary value to it.  Depending on the retirement assets, some require a Qualified Domestic Relations Order (QDRO) to implement the division of the asset.

Are Prenuptial Agreements Enforceable In New Jersey?

Generally speaking, yes. New Jersey law recognizes the enforceability of prenuptial agreements, but they are not foolproof. It is critical to have an attorney review to make sure all the appropriate language is in the agreement and reflective of your particular intentions and objectives.

Is It Possible to Void a Prenuptial or Mid-Marriage Agreement?

In some cases, yes. If a prenuptial or mid-marriage agreement is unconscionable or the product of fraud or duress, then it may be possible to petition the court to have it declared void. The ability to do this very much depends on the specific facts of your situation.  The more detailed you can be in a prenuptial agreement and the more advance time you do one before the actual marriage, the less opportunity for a spouse to try to void it, although there still is still always a chance.

How Does COBRA Health Insurance Work in A Divorce?

COBRA requires employers to continue to provide health insurance coverage to their employees’ former spouses. . A divorce situation is generally an event applicable to be able to put the former spouse onto COBRA benefits for up to 36 months.  However, the cost of the COBRA coverage (or the future medical coverage of the soon to be former spouse) is an issue that needs to be discussed as part of the overall divorce settlement terms.  To find out if COBRA applies to you in your situation, you will need to discuss your divorce with an attorney.

How Is Alimony Calculated In New Jersey?

In New Jersey, there are numerous factors considered to determine whether one spouse should receive alimony from the other. In cases where alimony is awarded, it is calculated based on a number of statutory factors rather than using a mathematical formula. As a result, spouses have a significant amount of flexibility to negotiate mutually agreeable terms.

Can My Wife Seek Permanent Alimony In New Jersey?

Open durational alimony is the new name in New Jersey, which does not have a hard end date for the obligor, although certain other triggering life events may cause a review, modification, or termination, depending.  There are several factors that are considered to even determine if your case is eligible or warrants Open Durational alimony and it is best to speak with an experienced attorney about that.

How Is Child Support Calculated In New Jersey?

In New Jersey, child support payments start with the New Jersey Child Support Guidelines, which is an algorithm calculation that is generated once certain specifics about your particular case is entered into the program, such as incomes of each party (actual or imputed), the parenting time schedule (overnights or 12 hour consecutive time), health insurance premium cost for the children, and possibly any childcare costs as well.  However, the facts of your case could warrant a deviation from those Guidelines, either up or down, especially if you and the other parent’s combined income exceeds the income threshold as set forth in the law to simply use the Guideline Calculation, or, if there is a special needs child involved.

How Can I Make Sure My Spouse Keeps Contributing to My Child’s College Savings?

In New Jersey, each parent has an obligation, not necessarily equal, to contribute to their children’s college costs and expenses. Part of the negotiations for settlement will include how much each parent will contribute, from what source those funds will come from, and whether it is appropriate for the parents to be saving now for that future event.

How Is Child Custody Determined in A New Jersey Divorce?

All child custody determinations are made based upon an assessment of the “best interests” of the child or children involved. New Jersey law specifies 14 non-exclusive best-interest factors for child custody matters. You can view these factors here.

Does New Jersey Law Favor Mothers in Child Custody Matters?

New Jersey law makes clear that neither parent is inherently favored in child custody matters. However, the reality is that perception of favorability to the mother still needs to be addressed and could very well still be present as an underlying theme in your matter.

What If My Spouse and I Can’t Agree on A Parenting Plan?

If you and your spouse cannot agree on a parenting plan, then your next step will most likely be to try mediation. If this does not work, then you may need to take your custody dispute to court or get an expert to recommend what is in the best interest of the child or children.

What If My Wife Violates the Terms of Our Custody Arrangement or Parenting Plan After Our Divorce?

If your wife violates the terms of your custody arrangement or parenting plan after your divorce, you can ask the court to enforce your legal rights. You will hopefully have a detailed and comprehensive agreement that makes it clear what everyone’s rights and entitlements are.

What If I Need to Change My Custody Arrangement or Parenting Plan?

If you need to change your custody arrangement or parenting plan post-divorce, it must first be determined whether there is a significant change in circumstances to substantiate the request. If there is, then perhaps the first step is to try to negotiate a consent resolution with your ex and if that fails, you can file a formal application with the Court to have the Judge decide.

What If I Lose My Job and I Cannot Afford to Pay Alimony or Child Support?

If you can no longer afford your alimony or child support payments, that could be considered a significant change in circumstances. But, before you run into court, it will benefit you to discuss the details with a qualified attorney to make sure you present your situation appropriately as you may only get one shot at success.

How Can I Establish Paternity to Get Custody Rights In New Jersey?

If the mother of the child you believe is yours does not recognize you as the father, you can request a paternity test.  Or, if you are unsure whether the child is yours, you can also request a paternity test.  In fact, it is better to be safe than sorry and always request a paternity test because once a parent starts paying child support, you cannot get those monies reimbursed.  In New Jersey, paternity is established by DNA testing.

Will Allegations of Domestic Violence Impact My Divorce In New Jersey?

It is possible. If one spouse can prove that you have committed an act of domestic violence (which could include situations not necessarily physical in nature like harassment as defined by the statute), this may negatively impact you, especially in matters of child custody and visitation. If you have been falsely accused, work with your attorney to uncover evidence to disprove your spouse’s allegations.

What Happens If I Receive a Final Restraining Order?

If you receive a final restraining order, you must strictly comply with the order to avoid being held in contempt (and potentially sent to jail). If you have any questions about what you are and are not allowed to do, you should speak with a lawyer promptly.  Obtaining a Final Restraining Order against you comes with it custody and visitation implications, especially in the short term.

How Can I Get a Final Restraining Order Dismissed In New Jersey?

In order to get your final restraining order dismissed, you will need to go to court. Learn more here.

These are general questions and answers. To have your specific divorce concerns addressed speak directly with an experienced lawyer from [MFR] Men’s & Fathers’ Rights Divorce Lawyers. Call (201) 880-9770 to arrange a consultation.

Carrie S. Schultz, Esq. – author

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