Divorce by nature is confusing and adversarial, but it doesn’t have to be. The New Jersey Divorce Guide was created by attorney Bart W. Lombardo to help residents shine a bright light down the dark tunnel of divorce.
Knowledgeable Guidance for a Difficult Journey
Ending your marriage, whether tumultuously or amicably, can be very upsetting for everyone involved. We know that this is not something that you planned or something you wanted to do, but here you are. Your struggle is understood. New Jersey divorce attorney Bart Lombardo is here for you when you feel completely lost in the midst of all that is going on. It is important to have an experienced New Jersey divorce attorney on your side.
We recognize that when divorce becomes the only option, you need a skilled and aggressive family law attorney, sympathetic to your needs that will assist to ensure that you are armed with adequate financial protection as you move forward with your new life.
One of the first steps in the divorce process is to understand how the State deals with divorce. Prior to filing for a divorce in New Jersey, certain residence requirements must be met. Generally speaking, the State requires that one or both of the parties have resided in New Jersey for a year prior to the commencement of their divorce, or requires that at least one of the parties be a legal resident of the state.
Next, a party wishing to divorce must decide upon which specific “ground” they will base their divorce. New Jersey statutes are clear that when a couple wishes to divorce, they must cite a specific ground before their divorce will be granted. Specifically, New Jersey’s divorce statute enumerates nine grounds that a party may plead to the Court in order to get their divorce granted. Those nine grounds for divorce are as follows:
- Desertion for a term of 12 months or more;
- Extreme cruelty (physical or mental abuse that endangers the safety or health of one of the parties);
- Separation for a period of at least 18 consecutive months, with no reasonable prospect of reconciliation;
- Addiction to narcotics and/or habitual drunkenness;
- Institutionalization for mental illness for a period of 24 or more consecutive months;
- Imprisonment of a party for 18 or more consecutive months after the marriage;
- Deviant sexual conduct voluntarily performed upon another party without the consent of the other spouse; and
- Irreconcilable differences which have caused the breakdown of the marriage for a period of 6 months, and there is no reasonable prospect of reconciliation.
These nine grounds can be separated into two categories: fault and no-Fault. A fault-based ground requires the party seeking the divorce to prove or demonstrate to the court specific instances of marital misconduct evidencing the particular fault ground that they pled. A “no-fault” ground, on the other hand, is simply a ground that a party may plead in their divorce papers that does not require them to put blame on the other party.
Of New Jersey’s nine grounds for divorce, two are “no-fault” grounds. Those two grounds are “separation for a period of 18 months” and “irreconcilable differences.” When a party files for divorce alleging either of these two grounds, courts presume that there is nothing further the parties can do to preserve the marriage and will generally grant the divorce without delving into any of the specific acts of marital misconduct by the parties.
Two clear advantages of pursuing a no-fault divorce are privacy and cost. By pleading a no-fault ground, a party is shielded from airing the couple’s “dirty laundry” in public. This protects both parties from the disclosure of specific embarrassing behaviors and incidents that occurred during the marriage, and can be particularly beneficial to the children of the marriage who sometimes may be the only witnesses who can prove a specific fault ground that was pled. Pleading a no-fault ground generally insulates the children from having to come to court and testify about their parents.
Additionally, costs are generally spared when a party pleads a no-fault ground, as there is generally no need for expensive private investigators or extra attorney involvement in developing the necessary proof the court requires to demonstrate the specific misconduct upon which a fault-based ground depends.
Because of these two clear benefits, our office always tries to encourage parties to resolve their marriage by pleading a no-fault ground when possible. This method generally assures a less contentious, more streamlined divorce. It also encourages the parties to hammer out the remaining details of their divorce by agreement. Generally such divorces do not result in subpoenas, depositions, or trials.
On the other hand, when a party pursues a divorce on a fault-based ground, the court requires that the party prove the fault ground with specific demonstrations of marital misconduct by the other party to substantiate the ground(s) that they pled. Of the six fault-based grounds, adultery, extreme cruelty, and desertion are the most commonly pled.
Proving fault-based allegations can be embarrassing, time-consuming, and expensive. It may require surveillance by a private investigator, subpoenaing the other party’s telephone records, interviewing their co-workers, and involve additional witnesses such as the parties’ children, extended family, and acquaintances. Some fault-based divorces have the tendency to result in nasty, personal mudslinging, along with protracted depositions, and even lengthy bitter trials. Further, these types of divorces often place the outcome of the divorce squarely in the hands of a judge and may lead to an unpredictable outcome.
While we have extensive divorce trial experience filled with excellent outcomes, where possible, we attempt to guide our clients away from these types of divorces which can be stressful, costly, and completely unpredictable. However, just like a marriage, every divorce is unique and when the parties cannot agree to the divorce or its terms, fault-based divorces can become necessary and in those cases we are ready to go to war for you! Often times, fault-based divorces and trials become necessary in situations where fault may influence a relevant financial factor, such as whether a party may be entitled to alimony.
How Marital Property is Divided in New Jersey
New Jersey is an “equitable distribution” state, which means that the marital assets and debts are to be divided in a fair and just manner given the parties’ relative contributions and sacrifices to the marriage. It does not mean that they will be divided evenly or 50/50. New Jersey courts apply a list of specific statutory factors to determine how much of the marital estate each partner receives at the conclusion of the divorce.
Specifically, the statute says that courts must consider:
- The duration of the marriage;
- The age and physical and emotional health of the parties;
- The income or property brought to the marriage by each party;
- The standard of living established during the marriage;
- Any written agreement made by the parties before or during the marriage concerning an arrangement of property distribution;
- The economic circumstances of each party at the time the division of assets becomes effective;
- The income and earning capacity of each party, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children, and the time and expense necessary to acquire sufficient education or training to enable the party to become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage;
- The contribution by each party to the education, training or earning power of the other; the contribution of each party to the acquisition, dissipation, preservation, depreciation or appreciation in the amount or value of the marital property, as well as the contribution of a party as a homemaker;
- The tax consequences of the proposed distribution to each party;
- The present value of the property;
- The need of a parent who has physical custody of a child to own or occupy the marital residence and to use or own the household effects;
- The debts and liabilities of the parties;
- The need for creation, now or in the future, of a trust fund to secure reasonably foreseeable medical or educational costs for a spouse, partner in a civil union couple or children;
- The extent to which a party deferred achieving their career goals.
As you can see, New Jersey’s statutory factors are quite extensive. The degree of emphasis a court may give to each factor varies with the circumstances of each marriage. Courts typically place the greatest importance on the duration of the marriage and the accustomed marital lifestyle of the parties. Litigating asset distribution has the potential to be a time-consuming, expensive and tedious process with an unpredictable outcome that rests in the hands of one judge as opposed to the two spouses. It doesn’t have to be. Parties are not obligated to have the court make the final decision about the division of their marital assets. They are free to negotiate the terms of their property division and iron out an agreement.
If you have any questions about how the interplay of these statutory factors might affect your divorce, do not hesitate to contact us today. We will work with you to establish a property division plan that you and your spouse can attempt to agree to, if possible, so that the decision rests in your hands rather than the court’s.
Property That Comprises the Marital Estate
The marital estate is comprised of all property and debts you and your spouse acquired during the course of your marriage. Property and debts held by either party prior to the marriage, along with any property received as a gift or inheritance from a third party is generally considered to be “separate property,” and is not included when dividing the marital estate. Common exceptions apply in cases where separate properties are “commingled” to the extent that they lose their original identity, and cases where separate property owes an increase in value to the efforts or sacrifices of the other spouse during the marriage.
A commingling of separate property might be said to have occurred when a couple opens a new checking or savings account that is initially funded by one of the spouses separate accounts held prior to the marriage, but thereafter regularly funded with marital earnings. A scenario where separate property owes an increase in value to the efforts or sacrifices of the other spouse during the marriage may occur when one party expends time, effort, and money in remodeling a home or vacation property that was originally owned by the other spouse prior to the marriage.
Once a court classifies all of the property and debts that comprise the marital estate, it then assigns values to each piece of property. Generally, a fair market value is assigned to each piece of marital property. The fair market value is not necessarily what the couple paid for the property, but rather the value the property would bring if it were sold on the open market in its present condition. Sometimes this necessitates the use of professional appraisals to establish that value. Once all of the marital property and debts are classified, the court can begin to distribute the marital estate in accordance with the statutory equitable distribution factors discussed above.
The distribution of the marital estate can be extremely time-consuming and detailed, particularly when retirement accounts and the marital home are at issue. If you are contemplating a divorce or separation, or are already going through a divorce, you need someone with experience and knowledge by your side to ensure that your post-marital life is as comfortable as possible.
Types of Alimony
Alimony is an agreed payment from one spouse to another after a divorce has been finalized. It is not meant as a penalty for separation. Instead, the purpose of alimony is for both spouses to maintain an equal standard of living comparable to what they had during marriage. In the state of New Jersey, there are four types of alimony: limited duration or temporary alimony, open duration alimony, rehabilitative alimony, and reimbursement alimony. All alimony payments are tax deductible and receival of alimony can be reported as income.
- Limited Duration Alimony
Limited duration alimony is temporary spousal support in which payments are made for a fixed amount of time. In New Jersey, the length of limited duration alimony cannot exceed the length of the marriage. This type of alimony usually applies to marriages of less than 20 years in which the spouse receiving payments is likely to become self-sufficient at some point in the future.
The amount of alimony paid during this fixed time can be subject to change. However, the length of time itself cannot be modified once it has been appointed.
- Open Duration Alimony
Formerly known as permanent alimony, open duration alimony applies to marriages over 20 years in which there is a relatively large disparity between incomes after divorce. For example, if one spouse was a homemaker or gave up career opportunities in order to support the other, they will likely never be able to reach the same standard of living they had during marriage. When this type of alimony is awarded, there is no fixed end date. However, payments may be modified if circumstances such as retirement or remarriage occur.
- Rehabilitative Alimony
Rehabilitative alimony is a series of payments made by one spouse so that the other can become self-sufficient. For instance, if one spouse wishes to pursue a degree or some form of vocational training after divorce in order to become fully independent, then the court may order the other spouse to pay alimony to support this goal. Rehabilitative alimony is awarded for a set timeframe based on the receiving spouse’s plan to become self-sufficient. This can be issued alongside limited duration or open duration alimony.
- Reimbursement alimony
Reimbursement alimony is awarded when one spouse has provided financial support to further the other’s education, such as medical or law school, but is unable to share in the earnings generated from that higher education because of the divorce. If both spouses contributed to an advanced degree during marriage, then New Jersey law stipulates that both spouses are entitled to the benefits. Reimbursement alimony can be awarded along with other types of alimony and is not subject for modification.
Determining Alimony Payments
In the state of New Jersey, there is no specific formula when it comes to calculating alimony. Duration and amount of spousal support is unique to each situation. To determine how much alimony (and what type) will be awarded, there are several various factors that courts will take into consideration. This includes:
- the ability of a spouse to make payments
- the need for a spouse to receive payments
- length of the marriage and standard of living established during that time
- financial contributions to the marriage
- health and age of the spouses
- education level and potential earning capacity (employability)
- cost of living
- income discrepancy
- division of assets
- childcare responsibilities
The courts will take into consideration the above factors to determine what type of alimony, if any, should be awarded. Yet there are a few other factors that could contribute to the termination or modification of an alimony agreement.
Complications with Alimony
If one spouse has an affair during the marriage, they will not be penalized for it and are still eligible to receive alimony. However, they will be at fault if the affair caused a negative financial impact upon the marriage. Likewise, any spouse convicted of a serious crime such as murder or grand theft cannot receive any alimony whatsoever.
Sometimes alimony duties are neglected, and payments are missed. A spouse cannot intentionally stop working just to increase the amount of alimony they will receive. If you stop making alimony payments, you may be held in contempt of court. Certain circumstances, however, require a modification in alimony, such as a career change or lay-off. If you are unable to make payments, or if you believe you need to receive more, then you must file a request to modify the alimony plan. Whichever side requests the change is also responsible for proving that the change is justified. If you need to change or modify your alimony arrangement, you also need an experienced attorney by your side.
Divorce with Children
If you and your spouse have children together, you may already know that this divorce will take more time. It doesn’t have to be complicated, but sometimes issues arise between spouses that makes decisions for children harder to make. You need to figure out child custody and child support; both difficult matters. If there is no chance that this will be an amicable decision, your case very well may end up in litigation. Needing litigation can take more time and money. It is so very important that you have an experienced attorney who you can trust if you have children involved in this divorce. More than ever, you will want to feel supported. Having a competent attorney defending you can mean all the difference.
Custody Mediation Versus Litigation
The good news is that this does not have to be an awful experience. For the sake of keeping this amicable and easier for your children, you and your attorney may opt for mediation. If you and your spouse are capable of handling all of this peacefully, this will be an easier process. You have many things that you and your spouse need to deliberate.
Some examples of decision that need to be made include:
- Who has custody while the divorce is ongoing
- Primary versus joint custody
- Changing custody agreements
- Education/ college decisions
If you have to go through litigation for one reason or another, you may be wondering what is necessary for that to be a successful experience. When there is too much tension for mediation, you may be worried about how taxing this custody battle can be. This is when having a great attorney by your side is so important. You may be going through this legal process for potentially years. You need to find an attorney who you like. If you don’t think you and your attorney are going to get along, that is not the attorney for you.
You should hire an attorney who is experienced in family law matters. Our New Jersey child custody attorney Bart Lombardo has a decade of experience handling child custody cases. You will find that you are in competent hands with Bart Lombardo and when you call the office, you can have him answer your questions. If you are dealing with an attorney who ignores your calls, they don’t have any interest in your concerns and you should find another attorney to represent your case.
How Custody is Determined
This is, of course, the most important step when dealing with custody. When deciding on custody, the courts will make this decision based on what is in the best interest of the child. It will always be what they believe is best for the child. A lot of variables come into play. Your child can have input in this decision if they are 12 years or older. They will observe the interactions between the children and the parents to see if that indicates an obvious choice. If one of the parents has a high-demand job with a lot of hours that keep them out of the house most nights, that will be considered.
What will also be considered is how fit the parents are. There are instances that will hugely impact a parent’s ability to have custody. If there is domestic violence, alcohol abuse, or criminal activity, the court is going to take that very seriously. If one spouse is convicted with any of these charges, they may not be able to have custody or visitation rights.
The custodial parent is not necessarily the parent who is going to be calling all of the shots. You might have one parent who has sole physical custody, but you have what’s called, legal custody. That has to do with the ability to make decisions in the child’s life. There are various combinations of custody but for the most part, a few example of how this works is as follows:
- One parent wins physical custody, but both parents share legal custody. In this case, the child or children live with the parent who has physical custody. However, when it comes to making big decisions in their life, both parents have a say in what happens.
- Less commonly, one parent will solely win both physical and legal custody. That means that one parent will be the sole caretaker of the child and will not have to consult with the other parent for decisions.
- Joint custody, both physical and legal, is something that more frequently happens. In instances such as these, both parents will split time shared with their children. The exact arrangement will be made by the judge or during mediation. The parents will also make big decisions for the child together.
You should sit down with an experienced New Jersey child custody attorney to see exactly what you want as an outcome while deciding the custody agreements.
Child Support Obstacles
The first challenge that your lawyer will help you handle is the initial phase of calculating child support. This is something that is calculated by a program. It will differ based on your income, the number of children in your household, as well as the other party’s income. All of that gets put into the program and it spits out a number. This is not necessarily the final number. There can be petitions if one party is unhappy with the agreement. This program is not without its flaws. There are variables that it does not necessarily take into place such as vacations, sports, specialized medical needs, etc. All of this will be considered before a decision is reached.
Who the payments go to is another consideration. You must first decide who the custodial parent will be, which is decided during its own phase of a divorce and possibly requires further litigation. Once that is decided, the custodial parent will be the one who receives the payments. The other party will be responsible for making the payments.
Past that, you can seek to modify these payments down the road. If your spouse gets a promotion, or you lose your job, you are going to need to go back to your lawyer to discuss how to change the child support payments. It will be recalculated and from there, you will have a new payment plan. You may also need to modify or even end child support if the child(ren)’s living situation changes. If they go away to college, move into an apartment, or are emancipated, that will all affect (or end) child support.
A huge part of a lawyer’s job is making sure that their client receives payments. An experienced New Jersey child support lawyer will know exactly how to enforce the payments of child support if you are not receiving them. Bart Lombardo realizes that this is a very stressful situation and it can put a strain on your life while you are waiting for your spouse to make a payment. He will work hard to get you your payments.
Mediating Child Support
Because this is such a hard situation for the whole family, you may be wondering how you can make child support easier for everyone involved. If you are in a situation where you and your spouse can amicably sit down with one another, you can consider the idea of mediation. This path can save you a lot of stress, time, and money. There are times when litigation is inevitable, but you may be able to make mediation work. It is a great option if you have the ability to work harmoniously with your spouse. If not that, at least being civil with one another is enough.
Frequently Asked Divorce Questions | New Jersey Divorce Guide
How do I choose a divorce attorney?
One of the things that you might want to look for is someone who you can trust, who has the experience, and who has the ability to be available to you when you need them. After all, if you can’t get in touch with your attorney when you have a problem, what good is that attorney?
One of the problems people have is that their interests aren’t adequately represented in court. You need to be able to communicate with your attorney and trust that your attorney is listening to you. One of the biggest mistakes you can make is having an attorney that doesn’t listen to you or that ignores your calls or is not responsive. That could add months and months of time to your case, which would also drive up the expenses.
What is a collaborative divorce?
The collaborative process in New Jersey is where the litigants and their attorneys work together to try to resolve your divorce issue. The attorneys are collaboratively trained, and the process is generally good. The difficulty is, if the process breaks down, both sides are required to get different attorneys moving forward, which would essentially unravel everything you’ve done to date and cost you more money in the long run.
What is a contested divorce?
You might have heard the term contested divorce. A contested divorce is exactly what it sounds like; it’s when people don’t get along and they are contesting the relief the other party is seeking. They might be challenging child support, they might be challenging alimony, or they might be challenging parenting time. A good attorney steps in to take your contested matter and make it an uncontested matter to get it resolved quickly and efficiently.
How much will divorce cost me?
That’s generally a difficult question to answer because it depends upon how well you and your spouse can negotiate and get along with the help of your attorneys. The more contested it is – meaning the more you guys fight about what you want, what you don’t want, how much support should be paid, who should see the child when – the longer it takes and the more expensive it is. Conversely, the more you guys can work together, the shorter the process and the less expensive it will be.
What if I’m denied access to marital funds?
If you’re considering divorce, one of the questions people often have is, “What happens if my spouse shuts off my access to funds?” Essentially, they’re turning off your ability to pay your bills. One of the first things you’ll have to do, after contacting your attorney of course, is to petition the court to have those funds released to you. To be able to pay your bills, to be able to support yourself, is something that is vitally important to any core process.
Conversely, if you’re the spouse that is trying to start this process by shutting off the financial reserves to your soon-to-be former spouse, we would advise against that. To show that to the judge as your first effort in trying to move through a divorce process generally does not work out well.
How do we divide a business?
If you own your own business, you might very well want to know how that business will be treated in your divorce process. Generally speaking, if you started your business during the marriage, your business will be considered a marital asset and your spouse will have a claim to some of the business. If, however, you started your business prior to your marriage, you can argue that your business is exempt and your spouse is not entitled to share in the value of your business.
However, if your spouse contributed in some ways towards your business during the marriage, they might be entitled to some percentage share of the business. This doesn’t mean they can come to your stockholders meetings and tell you how to operate your company; it only means that there has to be some type of financial consideration given to them for whatever value is apportioned to them.
How do we divide property?
As with all other marital assets, what happens to that home is largely determined by you and your spouse and what you can agree upon. If you can both agree on how that is disposed of, either through sale or through designating it to another spouse, that’s great! If you can’t come to terms in it, judges will likely order it to be sold and the proceeds split.
How is the marital home divided?
One of the biggest questions that I have concerning divorce in New Jersey from potential clients is, “What happens to my home?” Clearly, that’s going to be of paramount importance to anybody, especially those people that have kids. You’re going to want to know where you can go after this is over. Generally speaking, in New Jersey, when you’re getting divorced, you have the ability to negotiate. Through negotiation, you can actually keep your house in some situations; if you can find the assets to trade off to the other spouse or if the other spouse wants to relinquish their title to the house in New Jersey.
In addition, if you have children that are going to high school, a lot of judges will maintain that house until the kids graduate high school. In other situations, the house could be sold at the end, especially if neither party could afford to maintain the house on their own.
Do we have to go to court?
Generally speaking, we try to avoid that at all costs. We believe it is better for you to make the decision for your own divorce than some stranger in the black robe. However, there are times that you might have to go before the judge, especially if you don’t agree or the matter is hotly contested.
If you cannot come to a resolution on your matter, a judge will be required to do that. However, under the vast majority of circumstances, we don’t need to do that. The only time you’ll go before the court is the day that you’re actually going to get your divorce and then only to assure the judge that you understand the process.
Can we have this mediated?
If you’re considering divorce mediation in New Jersey, you might want to know what the pros and cons of mediation are. Mediation can be less expensive and quicker than a traditional divorce. However, normal mediation processes don’t allow for parties to have attorneys with them at the time. That creates a situation at the end of the mediation, when both parties might want their decision reviewed by their attorney, to unravel all the work that you’ve done. If you are considering divorce mediation in New Jersey, I would highly recommend that you have an attorney with you throughout the entire process, not just the end.
What’s the first step in a divorce process?
People often ask me, “What’s the first step in a divorce process?” I tell them to gather as much financial information as you can – tax returns, bank statements, and the like – then meet with an attorney that you choose. They will help you decipher what that information means and how to best use it in your case going forward.
Is there a residency requirement for divorce?
One of the questions that people ask me is, how long do they have to live in New Jersey before they can file for divorce? That question usually comes with a caveat; are there children involved? If there are children involved, the courts can shorten the time period for which you have to live here, especially when it concerns their health and well-being. Generally, though, the courts are going to require you, as a filing party, to live in New Jersey for at least a year before you file for divorce.
Can I divorce a missing spouse?
We have mechanisms by which we can locate your spouse. Even if we can’t locate your spouse, the court rules allow us to proceed on a basis where we don’t have to find them. All we have to do is be able to serve them through another means, meaning we can ask the judge to publish a notification in the newspaper of your pending divorce.
What is equitable distribution?
Equitable distribution, in its simplest terms, is dividing your property. It’s important to know that equitable does not mean equal. There are a lot of factors that the courts will consider in dividing your property. For instance, who acquired the property? Was it acquired before the marriage? Was it acquired right before your divorce papers were filed?
There are a multitude of instances where property acquired throughout the marriage was not divided 50/50 and was not divided equally. That is a case-by-case basis. It’s also important to know that equitable distribution will also divide your debts. Debts are part of your marriage and debts have to be apportioned before you can get divorced.
What are the grounds for divorce?
The other day I received a call concerning the grounds for a divorce in New Jersey. This particular client had a case of infidelity, where their spouse was unfaithful to them. That would be considered a ground for divorce in New Jersey. There are other grounds as well, depending upon your facts and circumstances, including, but not limited to, extreme cruelty, where there are allegations of spousal abuse. However, in most situations, we would recommend a no fault or an irreconcilable differences cause of action when filing your divorce.
Can we uncover hidden assets?
If you’re considering a divorce in New Jersey, one of the questions you might have is, “Can my spouse hide assets?” Yes, sometimes spouses do try to hide assets, but don’t worry, we’ll find them. We have discovery process at our disposal. We can use experts, such as private investigators, forensic accountants, or a multitude of different professionals to track these assets down, to make sure that they are present in your divorce. Conversely, if you think you can get away with hiding assets, I would strongly recommend that you don’t. Chances are, you’re going to be found out and lose the very thing you’re trying to hide.
How long does a divorce take?
One of the first questions you may ask yourself when considering divorce is about how long the process takes. That depends, in large part, on how the parties cooperate or don’t cooperate going forward. There are a vast many things that need to be determined in your divorce, including custody, allocation of assets, and potentially spousal support. The more issues that you and your spouse can agree upon, the faster your process will be.
How does inheritance get divided?
In New Jersey, under the divorce laws, inheritance is not subject to equitable distribution and is not attachable by the spouse unless you put that inheritance into a joint account or otherwise used the inheritance that you received into your marriage. In order to protect your inheritance, keep it separate.
What do I need to file for divorce?
When a client comes to me for the first time, I often require that they bring tax returns, financial documents, such as pension plan statements, bank account statements, or other documents that show what your assets are. It’s with those documents we can better understand what the parameters of your case will be and better understand how to best prepare yourself for the litigation going forward.
Do I have to divide a home I purchased before the marriage?
I had a client the other day that came into their marriage with a house that they had owned previously. They even went so far as to move their other spouse into that home during the marriage. Now that they’re getting divorced, they’re very concerned with what happens to that house that belonged to them. In New Jersey, that house would remain the property of the spouse who initially owned it. They had that before their marriage, and that would be their home. Now, if their current spouse contributed to the home in some way, by for instance putting an addition on the home, that spouse would have a claim to some portion of the house, but not the whole.
What is deemed marital property?
In its simplest term, marital property is anything that was acquired by you and the spouse during the marriage. However, it’s important to note that not all things fit within marital property. For instance, if you had assets before your marriage, a house from a prior marriage, that would not be considered marital property and would not be subject to equitable distribution and division to your other spouse.
Likewise, if you were in the divorce process or were still married had obtained an inheritance, that would not be considered marital property either. Those types of properties are separate. Generally speaking, if it was earned by either spouse during the marriage, it is likely marital property. If it was acquired prior to the marriage or acquired by way of inheritance, generally it will not be marital property.
How do I minimize divorce expenses?
One of the easiest ways is to keep your costs down, and one of the ways that you control, is the degree of reasonableness that you can exhibit throughout the process. When you’re discussing certain issues with respect to settlement, when you’re negotiating certain issues with your former spouse or soon-to-be former spouse, you want to maintain a degree of reasonableness. The more you fight, the more your attorneys need to get involved; the more your attorneys need to get involved, the higher the price to you.
Should I move out of our house?
I had a client the other day ask me if they should stay in the house during the divorce process in New Jersey. For that particular client, like most clients, the answer was yes. If you and your spouse can get along, it is better for you to stay in the house to keep costs down and to keep the same routine for the children. However, if there are situations where spousal abuse is there, it’s probably best that you get out of the house; your own self-protection is much more important.
What is a no fault divorce?
No fault divorces in New Jersey are a little bit out of style at this point because they take 18 months of separation before you can even file a cause of action for divorce. Unless you really have no contact with your spouse, we would recommend filing for irreconcilable differences.
Can I divorce an out of state spouse?
I had a situation just the other day where a client of mine resided in New Jersey, but their spouse lived out-of-state with the children. That’s a big caveat. If your spouse and children reside outside of the state, most courts will generally want to adjudicate your divorce in the state where the children reside. However, if you have no children or the children reside with you in New Jersey, you can absolutely file and get divorced in New Jersey without your spouse being here.
How do we serve divorce papers?
What we like to do is to try to serve them in as nice a way as possible, considering the circumstances. We would contact them first, to see if they have an attorney. If they do, service of process would be simple as calling up the attorney and giving them a copy of the complaint. If they don’t yet have an attorney, we would still try to contact them directly and ask them if they would voluntarily accept service.
What is an uncontested divorce?
I had a client ask me one time what an uncontested divorce in New Jersey is. An uncontested divorce in New Jersey is where all of your issues are resolved, whether it be through agreement between each of you or because your assets or issues presented in your case are not very complicated and are easily resolved. When that happens, your divorce process is generally pretty quick and pretty inexpensive.
Who pays the divorce retainer fees?
If you’re considering divorce in New Jersey, one of the questions you might have is, how am I going to afford an attorney when the spouse is the one who earns the money? The answer to that is quite simple. As your attorneys, we can petition the courts to have your spouse advance the money on your behalf for our retainer. That money will be advanced in place through the court system to come to us, to help defray the cost of your legal fees going forward. At the end of the divorce, the court or through negotiation, we will determine what portion of that attorney fee award will be attributable to you and what part will be attributable to your spouse.
Frequently Asked Alimony Questions | New Jersey Divorce Guide
What is alimony?
One of the issues that you might be faced with is alimony. Alimony in New Jersey involves several factors that need to be determined before a judge or even your attorneys can work out a proposition that works for both of you. One of the main focuses of alimony is if there is a disparity in your income. An income disparity means one spouse might be making significantly more than the other spouse. The more significant that disparity, the more likely one spouse will pay alimony to the other spouse. In addition to that, the length of your marriage is also a big factor in determining alimony. The longer your marriage, the more likely you will receive an alimony award and the longer that alimony award may be for.
Does an unemployed spouse get alimony?
You might have some questions concerning the payment of alimony to a spouse who doesn’t work. In New Jersey, someone’s ability to work goes into determining alimony, but so does the lifestyle that you had during the marriage. In most situations regarding the ability to work, courts are going to look at how both of you lived during your marriage.
For instance, was one spouse a stay-at-home parent that took care of the children? If that was the case, you can reasonably expect that a judge will order the other spouse to pay alimony to the spouse that stayed home and had forgone their career in an effort to further the marriage by taking care of the children.
How do we calculate alimony?
Alimony payments are determined based upon a multitude of factors. The simplest of which to discuss here is your income. Your income is by far the most important factor in determining what type of alimony award would be set in your particular case.
Generally speaking, the greater the disparity of your income, that party will be paying a portion of their income to the other spouse. In New Jersey, that portion is determined by many factors, including the length of your marriage, your lifestyle, your ability to support yourself, and your spouse’s ability to continue to support him or herself going forward.
What are the types of alimony?
New Jersey recently had a change in the law where alimony was modified so that there is a more definitive method by calculating it. If you are now married less than 20 years, the law will only allow you a maximum period of alimony of one year for every year that you were married. That generally has been interpreted to less than that; almost six months to every year that you were married. If you were married over 20 years, then you would be looking at something called open durational alimony, which generally means permanent alimony until your spouse who pays the alimony retires.
Am I entitled to alimony?
The disparity or difference in your incomes is determined to be only one factor in an alimony award. Generally speaking, if you are making less and you were married a certain period of time, you might be entitled to an alimony award. However, there is no blanket formula by which you can say you will definitely be entitled to alimony.
How long does alimony last?
If you’re going through a divorce in New Jersey and that divorce involves the question of alimony, one of the sub-parts to that is, how long can I expect alimony to last? That is determined upon the length of your marriage. That is by far the biggest factor in how long alimony will last. There has been a recent enactment of a statute in New Jersey which provides that alimony for a marriage up to 20 years cannot last longer than the marriage. Generally speaking, courts have interpreted that to mean less than one year of alimony for every year of the marriage. If, however, your marriage lasted longer than 20 years, it would reasonably be expected that your alimony award will last until the paying spouse retires.
What is imputed income?
The courts in New Jersey do not look favorably upon a person who voluntarily makes less money, especially when they think they’re making less money to get out from under paying an alimony obligation.
Your former spouse will have the ability and the obligation to prove that they’re making less money through no fault of their own. That’s a difficult threshold, but it is also a threshold that’s required because, if somebody is laid off and not working through no fault of their own, they should be entitled to some benefit for that. However, if a judge finds that a spouse is doing it for the purposes of hiding money or the purposes of trying to reduce alimony, that person will be imputed income up to their former levels and likely, your alimony award won’t be reduced at all.
What if my ex is not paying owed alimony?
One of the things that you can do to assure that alimony gets paid is to notify the court by way of a motion. You’ll be asking a judge to take this order and enforce it against your spouse who is not paying alimony. Judges can take multitudes of steps to make sure that you get your money, including putting a levy on those person’s assets by garnishing their wages, or you may elect to have probation monitor and administer your alimony award, whereby probation would be the collecting party, and they have the ability to actually take people who don’t pay and put them in jail.
Can I have alimony reduced?
One of the things that you might want to consider when being faced with such a motion is if that reduction is based upon a reduction in your spouse’s income. If it is, there are several factors that we have to consider in making a defense to that application. One is how legitimate is the reduction of your spouse’s income? That will be questioned by the court. If the court finds that your spouse is willfully reducing their income in an effort to reduce paying alimony, the judges will not look kindly upon that and will likely maintain your alimony award at the current level.
Frequently Asked Child Custody Questions | New Jersey Divorce Guide
What is the best interest of the child?
One of the questions that I receive are, what factors do the courts use to determine who gets the kids? That is determined by the best interest of the child. There are a multitude of factors that the courts will consider, including your abilities as a parent, the child’s wishes (depending upon their age), the necessities that can be met by the child, and quite frankly, the ability between both spouses to get along. It is one of the most difficult things that we face as divorce attorneys, and we strive to try to work things through before it gets to that point for the simple reason that in most custody battles, the only ones who lose are the kids and we want to try to avoid that as much as possible.
Can I child choose where they want to live?
Sometimes people ask me if their children can have an input into the decision-making process as to where they want to live. The shorter answer is it depends. The courts are allowed to consider the children’s wishes in any custody determination, determined on the age of the children. The younger children have much, much less say, if at all, in where they want to reside, as opposed to say a 17-year-old child, who might have a certain bond or connection with one parent over another.
How can I change a custody agreement?
It will require you going to court or negotiating with your former spouse on a concept of change and circumstances. For instance, if you came to me and said, “Bart, I have kids I don’t get to see anymore. Why I can’t see them is because I had a job out-of-state.” Now, you might come to me and say, “My job is close to home. I have more time.” Well, that would constitute a change in custody, allowing us to reopen your custody decision to get you more time.
Can I relocate with my child?
In general, any application for relocation of children would require the court to approve that or the consent of the children’s parent. That can be a difficult prospect. However, in New Jersey, that is governed by what is called the best interest of the children. You would have to establish that it is, in fact, in the best interest of your child or children to go with you to another jurisdiction. That could be established through employment opportunities, familial support, the abuse of a spouse or a former spouse here in New Jersey that you need to get yourself and the children away from, but generally speaking, that is something that can be done.
Are dads less favored for custody?
You might be a father who is concerned that the courts of New Jersey favor moms over dads in a divorce process. I can assure you that under New Jersey law, that is not the case. Each parent has an equal right to parent the children. The courts are guided by a principal called the best interest of the children going forward, and the courts will look at what each parents’ contribution to that child or children are and they’ll make sure that the kids receive the benefits from both of you. Courts recognize that it’s just as important to have a dad as it is to have a mom, and that is going to be the driving force behind any court’s decision and in fact any decision we would make jointly for your children.
Do grandparents have rights?
Generally speaking, grandparents have rights independent of the right of their son or daughter going through a divorce. If as a grandparent, you’re deprived the right to see your grandchild or grandchildren, you can ask the courts for permission to see them over even the objections of your son or daughter, and certainly over the objections of our son- or daughter-in-law. Generally speaking, courts will grant a grandparent the right to have parenting time with the grandchildren.
What is a parenting time schedule?
There is a concept in New Jersey called parenting time, which is exactly like it sounds. It is a schedule of time where you and your spouse would agree that the children are going to be parented by each one of you at any given time. That’s not to say you’re completely cut off from your kids when it’s not your parenting time on the schedule, but rather the custodian of the children would change between you and your spouse and generally, how you and your spouse agree, either every other day or on alternate weekends, or anything that works as a unit for the both of you.
Can I get custody of a pet?
A lot of times, people will consider dogs or pets as part of their family and rightly so. They have been with you, lived with you, shared your love for years at sometimes. However, the law doesn’t necessarily treat them as such and to non-pet owners, that could be a traumatic experience. However, if you have the right attorney, we can negotiate with your spouse, who likely feels the same love for your pet that you do, what would be in the best interest of that pet and who should maintain that pet going forward, or in some cases, even have a parenting plan schedule for your pet.
What is shared custody?
If you have children, you’re likely very concerned about what’s going to happen to them throughout the divorce process, specifically as it relates to shared custody. Shared custody is a concept where both you and your spouse will effectively share parenting responsibilities for both of your children. Throughout any divorce process, there is always going to be some degree of upheaval and some degree of uncertainty. Your attorneys will work with you to try to minimize that as much as possible for the children. It’s important for you to know that both the courts and the attorneys have the best interest of your children in mind and will work with you to make sure that their needs are met throughout the entire process.
What is sole custody?
You might have children and might be concerned about a concept called sole legal custody. In New Jersey, there are two types of custody: physical and legal. Physical custody means where the kids are at any given point in time; where they put their heads at night and where they wake up in the morning. Legal custody, however, is who has the right to make decisions with respect to the children. Most of those decisions are going to be major decisions regarding medical procedures, regarding how the upbringing of the children is going to impact them where they go to school, and that decision is more of a legal, as opposed to a custodial decision. Generally speaking in New Jersey, barring abuse and neglect, most parents will share legal custody.
What if my ex is keeping my child from me?
If you’re here, you might have questions concerning seeing your children throughout the divorce process in New Jersey, especially where your spouse or former spouse refuses to allow you to have access to your children. That is one of the most damaging things a spouse can do, is to withhold your child or children from you. We take that and the courts take that very seriously, and we will do everything we can to make sure that you’re entitled to and do get the parenting time that you need, and quite frankly, that your child or children needs to spend with you, to be able to have a relationship with you throughout the process and beyond.
Frequently Asked Child Support Questions | New Jersey Divorce Guide
How is child support calculated?
You might have questions about child support and how it’s calculated under New Jersey law. The courts will consider various factors in child support and how to calculate it. Two of the most important ones being the incomes of both parties, and the parenting time that both parties have. Those work in conjunction with each other, meaning the more income you have, generally speaking, the higher the child support payments you’ll be required to make or will be receiving for the benefit of your child. Similarly, the more time you have overnight parenting time with your child, the more you should expect to receive for the benefit of your child because the higher your expenses will be.
Some people ask me, “What if my spouse or the parent tries to hide income from me to reduce my child support that I’ll get for the benefit of my children?” The courts have the ability to credit income to that spouse. They cannot willfully be underemployed or willfully quit their job and expect to have them benefit from that rather unprincipled decision.
Can I change a support order?
There are several different factors that come into it; the most common one is if you’re not making as much as you used to make. The courts have the ability to and often do modify child support awards based upon your present income. It’s important to note, though, that you’ll have to prove your case. They’re not going to take your word that you’re making less; you’ll need to establish through pay stubs or tax returns that, in fact, you are making less money, and judges do have the ability to impute income to you if they think you’re voluntarily making less money. It’s important to note that, if you’re going to seek a modification in your child support, you need to have the documents to support that modification readily available.
How is child support collected?
In New Jersey, there are a couple different methods by which you can collect money that that parent has not paid for the benefit of their children. You can have probation administer your child support case. That is the least expensive to you because you’re allowing probation to enforce their child support order. If the obligating parent does not pay, probation has the ability to go and actually have this person arrested, and brought before a judge, and get money out of them for support of your child.
Also, you have the ability to go to court yourself. You can hire an attorney and have them represent you in the court to tell the judge that the parent of the child is not paying what they’re supposed to pay. That judge also has the authority to have an arrest warrant issued and/or to levy assets to be used to satisfy any unpaid amounts.
How is college expenses determined?
The apportionment of college expenses is generally based upon each party’s ability to pay. Courts will require an examination of everyone’s income and determine who has earned and in what capacity have they earned to be able to contribute to the child’s education.
In addition, the courts will look at the child themselves. If you have a child that excels in sports, for instance, but might not be the scholarship recipient based upon their grades, courts will look at what type of institution that child is seeking to apply to. Are they looking to apply to a more sports-oriented school to obtain their goals, or are they looking more to an academic-type institution, which might not be suitable for them?
How can we enforce child support payments?
You have the absolute right to take that spouse or that ex back to court. Generally speaking, support awards for child support and/or spousal support are court orders. Your spouse is violating a court order by not paying; they could be subject to arrest, incarceration, and they could have their assets seized to satisfy the money they owe you.
Who pays for extracurricular activities?
If you have a child in New Jersey and you’re going through a divorce or separation, you might be considering how extracurricular costs associated with your child’s lifestyle are going to be handled going forward. The courts in New Jersey always have the best interest of the children paramount, meaning if your child is presently in dance lessons, or swim lessons, or plays sports, the courts will do everything that they can to make sure that your child or children continues those activities. They don’t want the kids to pay the price for your separation and that’s a pretty good thing.
How that gets paid for is an entirely different question. Usually, the courts will apportion the costs of these activities based upon you and your ex-spouse’s respective incomes, meaning if you make 10% of the income, generally judges will say you pay 10% of that extracurricular expense.
Can child support be increased?
Generally speaking, once child support is set, the courts will leave you alone. However, if your spouse or the child of the parent petitions the court and says that there is a change in circumstance, meaning that a former spouse or the parent of the child is now making more money, the court will then be forced to address what that amount of money is and how that amount of money impacts your child support payment. You’ll essentially have to have an entire hearing again to determine how much the child support should be, going forward.
What is a motion to modify child support?
One of the questions you may have is what to do if a child changes where they live, for example if they used to live with your spouse and are now coming to live with you. Generally, there will be a child support order that will have been put in place regarding your prior arrangements. Obviously, that no longer takes effect anymore because the situation has changed. You have the absolute right to go back to court and to ask the judge to modify your child support so that in most cases, instead of paying support, you’ll be receiving support from the other spouse.
Can child support be enforced from out of state?
If you’re living in New Jersey with your child or children and you’re seeking child support to be paid, you would file in New Jersey against your former spouse or partner to obtain child support. The New Jersey courts have jurisdiction whether or not your spouse or former partner is located in New Jersey because they have jurisdiction over the child. Surely, you have to locate and find where your spouse is so they have proper service, but New Jersey can and will exercise jurisdiction to make sure that child support is collected on behalf of your child or children.
How can I terminate child support?
The courts will require you as a paying parent to pay child support so long as your child is not emancipated. Emancipation is a legal concept that generally means the child is outside of the sphere of influence of any particular parent, whether they’ve gotten married on their own, completed college, or gone into the military service. There are a multitude of factors that courts will consider in order to determine what an emancipation event is. Generally speaking, though, you should be prepared to pay child support until at least your child is 18 or graduates college.
Can child support be waived?
In New Jersey, the child support rights are not yours; they belong to your children, and they are designed to provide for the needs of your children. While you might be able to provide for those needs on your own, you as a parent are not able to waive the rights of your minor child with respect to child support.
Will I pay child support for a child who doesn’t want contact with me?
One of the most difficult things a parent can come to me with is if they have to pay child support when they don’t have a relationship with their child. Obviously, that’s a heart wrenching and detrimental experience for the parent to go through. On top of that, to be asked to contribute to a child that potentially wants nothing to do with you is devastating. The courts do recognize that, and the courts do allow, in some circumstances, to not have to pay support for a child who wants nothing to do with a parent. Generally speaking, those cases involve contribution to college, when a child is old enough to make a determination as to whether or not they know what they’re doing when they say they don’t like mommy or they don’t like daddy.
Consultation with a New Jersey Divorce Attorney
Finding the right attorney can be rewarding. Your journey with this person may be a long one and you may be required to deal with them often, so liking your attorney is great. They will be the one who you turn to for help throughout the entire legal process. During a consultation with an attorney, you should interview them to see if you think they will be a good fit with you.
Ultimately, you need to trust them with your case and have confidence in their abilities to fight for you. New Jersey divorce attorney Bart Lombardo has a decade of experience in divorce cases and will be dedicated to your case. Please call our office today to arrange a consultation. We look forward to taking your call.