New Jersey Divorce and Family Law FAQs
01. Is New Jersey a “No-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 in cases where “Irreconcilable differences . . . have caused the breakdown of the marriage for a period of at least six months and . . . make it appear that the marriage should be dissolved and that there is no reasonable prospect of reconciliation.
02. What are the Fault-Based Grounds for Divorce in New Jersey?
The fault-based grounds for seeking a divorce in New Jersey include adultery, willful and continued desertion, drug addiction, extreme mental cruelty, imprisonment, and deviant sexual conduct.
03. 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. All other divorces are considered “contested.” Most cases fall under the category of contested since there might be issues that you and your spouse didn’t even know had to be dealt with before finalizing the divorce. This is why speaking to an attorney is possible to make sure nothing was missed that could present a problem in the future for not being addressed now.
04. Is New Jersey a Community Property State?
No. New Jersey is considered an “equitable distribution” State.
05. What is the Difference Between Marital Property and Separate Property?
Generally speaking, “marital” assets are those acquired during the marriage, while “separate” assets are those that existed prior to the marriage. But, there are many exceptions to this so you want to speak to someone before assuming anything.
06. Does Equitable Distribution Mean a 50-50 Split of Our Marital Property?
No. “Equitable” does not necessarily mean “equal.” There are itemized factors under NJ Law that must be considered to determine the appropriate percentage split. However, in long term marriages, a 50/50 split will be discussed first and then there could be circumstances that make it so we should unequally divide assets and liabilities.
07. Will We Have to Sell Our House During Our Divorce?
No, not necessarily. In fact, many couples cannot afford to physically separate during the divorce proceedings. As part of the negotiations to resolve all the issues, what to do with the house and the timing of when to do it will be discussed in terms of everyone’s long term plan, financially and emotionally–and, of course, the best interest of the children, if there are children. There are plenty of times where the parties agree to sell or one spouse purchases the other’s interest in the house out and stay put. As part of the process, the value of the house, less any debt related to the house, will be determined to figure out each spouse’s appropriate share regardless if it is a sale or spousal buy out.
08. What if My Spouse and I Both Want to Keep a Piece of Property or a Keepsake?
This depends. If it is a piece of property and this is a priority of yours, then you should alert your attorney so that any settlement negotiation can be structured around this. If you and your spouse don’t agree, the Judge will ultimately have to make the call. If there is a sentimental keepsake at issue for either of you, we first have to determine whether it is a marital keepsake or can be considered separate property before we can have the discussion on who is to get it.
09. How are Debts Divided in a New Jersey Divorce?
In New Jersey, a marital debt (otherwise known as a joint debt) s a debt acquired during the marriage, regardless of whose name the debt is in. Marital debts are divided in the same manner as marital property and will be divided in an equitable fashion (not necessarily 50/50) depending upon the facts of your particular matter.
10. What if My Spouse Brought Debt into Our Marriage?
If your spouse brought debt into your marriage, it may be considered “separate” debt (because it was incurred before the marriage) and therefore, it may end up that you have no responsibility towards that debt. However, there are exceptions to this general rule that could change this outcome.
11. 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 (very much like debts). However, it could very well be that only a portion of the business will be considered marital (not the whole thing) and only that portion (or the value of that portion) will be subject to be divided inequitable distribution. On the other hand, it could be that the entire business is exempt from the equitable distribution or, perhaps one spouse will negotiate or trade something of higher value to him/her in exchange to keep the business.
12. How Will Our Retirement Accounts be Distributed in Our 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.
13. How Will Our Child’s 529 College Savings Plan be Distributed in Our Divorce?
This is a very long conversation with many qualifying questions that have to be answered first. However, generally, the funds in the 529 plan will first be used and applied to your children’s college expenses as regulated by the 529 plan rules. As part of the divorce settlement discussions, determining what happens to any leftover funds in the 529 accounts is critical, along with specifying a protocol of what happens if the current 529 funds do not end up covering all of the child’s anticipatory college expenses!
14. 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 and from what source those funds will come from.
15. Is it Possible to Get a Divorce Online in New Jersey?
No., it is not possible to get a divorce online. You will ultimately need to go to court (or have your attorney be your agent) in order to finalize the divorce. However, our office is well equipped to virtually work with you so at least you do not really need to physically come to our office unless you want to!
16. What are the Risks of 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 the concern that you will overlook a key issue or agree to a settlement that cannot be undone after your divorce is final. It is imperative to at least speak with an attorney before you sign on the line that is dotted.
17. What Happens if My Wife and I Overlook an Issue During Our Divorce?
The consequences of overlooking an issue depending on the specific issue you overlooked. Some mistakes can be fixed, and some cannot, no matter how much you regard after the fact making that decision.
18. 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 to make sure all the appropriate language is in that Agreement accordingly.
19. 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.
20. How Does COBRA Health Insurance Work in a Divorce?
COBRA requires employers to continue to provide health insurance coverage to their employees’ former spouses in some cases for a certain period of time. To find out if COBRA applies to you in your situation, you will need to discuss your divorce with an attorney.
21. What Should Divorcing Spouses in New Jersey Know about Divorce Mediation?
Mediation can be an effective tool for resolving divorce-related disputes in many cases. But, it isn’t for everyone. If you and your spouse are willing to work together, then it may be a good option. In every divorce matter, there is an opportunity to attend mediation on some level or approach discussion of resolution of the issues in a collaborative type approach. With that said, some couples just cannot agree no matter what and in those cases, it is sometimes more efficient and cost-effective to have the Judge make the decision.
22. 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 become public record, but there are other portions that are kept confidential.
23. Does New Jersey have Alimony?
Yes. In New Jersey, there are numerous factors to determine whether one spouse can or should receive alimony from the other and all of those factors have to be considered and applied to the particular facts of your matter.
24. How is Alimony Calculated in New Jersey?
Alimony is calculated based on a number of statutory factors; there is not a mathematical formula. As a result, spouses have a significant amount of flexibility to negotiate mutually-agreeable terms, even if the end result is not ideal for either of you.
25. Can My Wife Seek Permanent Alimony in New Jersey?
The law recently changed where this concept is now called Open Durational Alimony. Open Durational Alimony is available in some cases. New Jersey has statutory factors that deal with this as well.
26. 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. However, there are many cases that require a deviation from those Guidelines, either up or down, depending.
27. What Child-Related Costs Are Not Covered by Child Support in New Jersey?
Child support covers most, but not all, child-related expenses. Most significantly, child support does not cover the costs of higher education (in most cases) and some specific extracurricular activities.
28. 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.
29. Does New Jersey Law Favor the Mother in Child Custody Matters?
No, New Jersey law makes clear that neither parent is inherently favored in child custody matters. However, the reality, however, 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.
30. What are New Jersey’s “Best Interests” Factors for Establishing Custody?
New Jersey law specifies 14 non-exclusive “best interests” factors for child custody matters. You can view these factors here.
31. Is Co-Parenting an Option in New Jersey?
Yes, co-parenting is an option and very encouraged by the Courts in New Jersey. If you are interested in co-parenting after your divorce, you will want to work with your attorney to create a comprehensive parenting plan so all of the details are worked out ahead of time to prevent future disagreements.
32. 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 doesn’t 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.
33. 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.
34. 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.
35. What if I Lose My Job or My Business Slows Down and I Can’t 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 depending. But, before you run into court, you need to discuss all of the details with a qualified attorney to make sure you present your situation appropriately as you may only get one shot at success.
36. As a Father, Will I Need to Establish Paternity in Order to Get Custody Rights in New Jersey?
Only if you believe that you may not be the father. You have every right to request a paternity test just to make sure before you voluntarily agree to have a legal obligation to provide support to a minor child.
37. What if My Child’s Mother Won’t Recognize Me as the Father?
There are legal means for proving paternity in New Jersey, and an experienced family law attorney will be able to help you prove your parentage.
38. How Do You Establish Paternity in New Jersey?
In New Jersey, paternity is established by DNA testing.
39. Is it Possible to Get Legally Separated in New Jersey?
No. There is no legal separation in New Jersey. However, that does not mean that you cannot separate, but this can become a very tricky situation quickly if you do not map out a plan before you are physically separate. You may do something unintentional that will not be to your benefit later so you speak with a qualified attorney and cover all of your basis first.
40. What Do I Need to Know if My Wife is Accusing Me of Domestic Violence?
Domestic violence allegations are taken very seriously in New Jersey. The consequences can be immediate and severe, so it is important that you speak with an attorney promptly.
41. Will Allegations of Domestic Violence Impact My Divorce in New Jersey?
It is possible. If your wife can prove that you have committed an act of domestic violence (which could include situations not necessarily physical in nature), this may negatively impact your ability to achieve your desired outcome in your divorce and especially as it relates to custody or visitation arrangement.
42. How Can I Defend Against False Allegations of Domestic Violence?
The good news is that there are various ways to prove that allegations of domestic violence are false. If you have been falsely accused, you will need to work with your attorney to uncover evidence that disproves your wife’s allegations.
43. What Happens if I Receive a Final Restraining Order?
If you receive a final restraining order, you must strictly comply with the order in order to avoid being held in contempt (and potentially being sent to jail). If you have any questions about what you are and aren’t allowed to do, you should speak with a lawyer promptly.
44. 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. You can learn more here: The Process of Dismissing a Final Restraining Order.