When a marriage ends, you have decisions you need to make that will affect your future and the future of any children you may share with your ex-spouse. Getting the right information can help you make informed decisions.
At Klatsky & Sciarrabone, our lawyers know you have questions. We help you understand your rights and responsibilities during this particularly difficult time. You do not have to endure a divorce alone. Get answers to your questions today and contact us online or at 732-741-3200 to schedule a consultation.
Uncontested and Contested Divorces
The divorce process is dependent in part on whether it's contested or not. Uncontested divorces can move along rather quickly when the divorcing couple agrees on property division, spousal support, child custody, and child support. When one spouse challenges any of these matters, the divorce becomes contested.
In a contested divorce, unless the parties can come to an agreement, the case will proceed to trial. Fortunately, in most cases the parties are able to reach an agreement with the assistance of their attorneys or through mediation.
Grounds for Divorce in New Jersey
A cause of action for divorce in New Jersey can be based upon one or more of the following:
1. Adultery;
2. Willful and continued desertion for the term of 12 or more months, which may be established by satisfactory proof that the parties have ceased to cohabit as man and wife;
3. Extreme cruelty, which is defined as including any physical or mental cruelty which endangers the safety or health of the plaintiff or makes it improper or unreasonable to expect the plaintiff to continue to cohabit with the defendant; provided that no complaint for divorce shall be filed until after 3 months from the date of the last act of cruelty complained of in the complaint, but this provision shall not be held to apply to any counterclaim;
4. Separation, provided that the husband and wife have lived separate and apart in different habitations for a period of at least 18 or more consecutive months and there is no reasonable prospect of reconciliation; provided, further that after the 18-month period there shall be a presumption that there is no reasonable prospect of reconciliation;
5. Voluntarily induced addiction or habituation to any narcotic drug as defined in the New Jersey Controlled Dangerous Substances Act or habitual drunkenness for a period of 12 or more consecutive months subsequent to marriage and next preceding the filing of the complaint;
6. Institutionalization for mental illness for a period of 24 or more consecutive months subsequent to marriage and next preceding the filing of the complaint;
7. Imprisonment of the defendant for 18 or more consecutive months after marriage, provided that where the action is not commenced until after the defendant's release, the parties have not resumed cohabitation following such imprisonment;
8. Deviant sexual conduct voluntarily performed by the defendant without the consent of the plaintiff; and
9. Irreconcilable differences which have caused the breakdown of the marriage for a period of six months and which make it appear that the marriage should be dissolved and that there is no reasonable prospect of reconciliation.
Property Division in New Jersey
In New Jersey, property acquired during the marriage, other than by gift or inheritance, is subject to equitable distribution. This does not mean that property subject to equitable distribution will be equally divided between the soon to be ex-spouses; however, an equal division of property subject to equitable distribution is not uncommon. When deciding upon an equitable distribution of property, a court will consider but not be necessarily limited to the following factors:
1. The duration of the marriage or civil union;
2. The age and physical and emotional health of the parties;
3. The income or property brought to the marriage or civil union by each party;
4. The standard of living established during the marriage or civil union;
5. Any written agreement made by the parties before or during the marriage or civil union concerning an arrangement of property distribution;
6. The economic circumstances of each party at the time the division of property becomes effective;
7. 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 or civil union;
8. The contribution by each party to the education, training or earning power of the other;
9. The contribution of each party to the acquisition, dissipation, preservation, depreciation or appreciation in the amount or value of the marital property, or the property acquired during the civil union as well as the contribution of a party as a homemaker;
10. The tax consequences of the proposed distribution to each party;
11. The present value of the property;
12. The need of a parent who has physical custody of a child to own or occupy the marital residence or residence shared by the partners in a civil union couple and to use or own the household effects;
13. The debts and liabilities of the parties;
14. 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;
15. The extent to which a party deferred achieving their career goals; and
16. Any other factors which the court may deem relevant.
Further, there is a rebuttable presumption that each party made a substantial financial or nonfinancial contribution to the acquisition of income and property while the party was married.
Alimony in New Jersey
There is no set formula used to determine alimony in a New Jersey divorce action. A court may award to either party one or more types of alimony: open durational alimony; rehabilitative alimony; limited duration alimony or reimbursement alimony. When doing so a court will consider, but not be limited to, the following factors:
1. The actual need and ability of the parties to pay;
2. The duration of the marriage or civil union;
3. The age, physical and emotional health of the parties;
4.The standard of living established in the marriage or civil union and the likelihood that each party can maintain a reasonably comparable standard of living, with neither party having a greater entitlement to that standard of living than the other;
5.The earning capacities, educational levels, vocational skills, and employability of the parties;
6.The length of absence from the job market of the party seeking maintenance;
7. The parental responsibilities for the children;
8. The time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, the availability of the training and employment, and the opportunity for future acquisitions of capital assets and income;
9.The history of the financial or non-financial contributions to the marriage or civil union by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities;
10. The equitable distribution of property ordered and any payouts on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair;
11. The income available to either party through investment of any assets held by that party;
12. The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a non-taxable payment;
13.The nature, amount, and length of pendente lite support paid, if any; and
14. Any other factors which the court may deem relevant.
Child Custody in New Jersey
A New Jersey court has authority to award custody of the minor children born of the marriage as follows:
1. Joint custody of a minor child to both parents, which is comprised of legal custody (i.e. the right to make major decisions regarding the child's health, education and general welfare) or physical custody (i.e the right to have the child reside with the parent full or part time) which shall include: (1) provisions for residential arrangements so that a child shall reside either solely with one parent or alternatively with each parent in accordance with the needs of the parents and the child; and (2) provisions for consultation between the parents in making major decisions regarding the child's health, education and general welfare;
2. Sole custody to one parent with appropriate parenting time for the noncustodial parent; or
3. Any other custody arrangement as the court may determine to be in the best interests of the child.
The factors which a court will consider in making a custody award, include but are not limited to: the parents' ability to agree, communicate and cooperate in matters relating to the child; the parents' willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse; the interaction and relationship of the child with its parents and siblings; the history of domestic violence, if any; the safety of the child and the safety of either parent from physical abuse by the other parent; the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision; the needs of the child; the stability of the home environment offered; the quality and continuity of the child's education; the fitness of the parents; the geographical proximity of the parents' homes; the extent and quality of the time spent with the child prior to or subsequent to the separation; the parents' employment responsibilities; and the age and number of the children.
Child Support in New Jersey
In most cases, where the combined net weekly income of the parents does not exceed $3,600.00 (as of 2023), a New Jersey court will apply the child support guidelines to determine the amount of a child support award. The child support guidelines employ a formula for arriving at a child support award which takes into account the number of children involved, the net incomes of both parents, the number of overnights the children spend with each parent and other factors. If the combined net weekly income of the parents exceeds $3,600.00 (as of 2023), then the court will set the amount of child support based upon consideration of the following:
1. Needs of the child;
2. Standard of living and economic circumstances of each parent;
3. All sources of income and assets of each parent;
4.Earning ability of each parent, including educational background, training, employment skills, work experience, custodial responsibility for children including the cost of providing child care and the length of time and cost of each parent to obtain training or experience for appropriate employment;
5.Need and capacity of the child for education, including higher education;
6. Age and health of the child and each parent;
7. Income, assets and earning ability of the child;
8. Responsibility of the parents for the court-ordered support of others;
9.Reasonable debts and liabilities of each child and parent; and
10. Any other factors the court may deem relevant.
Overview of Divorce Litigation in New Jersey
A divorce case is initiated by either spouse filing with the Court a Complaint which asserts one or more causes of action for divorce recognized in New Jersey. The spouse who files the Complaint is referred to as the plaintiff. After the Complaint is filed, the plaintiff must have the Complaint and a Summons served upon their spouse who is referred to as the defendant. The Summons directs the defendant to file with the Court an Answer and serve a copy of same upon the plaintiff. The defendant's Answer responds to the factual allegations set forth in the Complaint, asserts any applicable defenses and may state a Counterclaim for divorce. If the defendant's Answer states a Counterclaim, then the plaintiff will file with the Court and serve upon the defendant an Answer to the Counterclaim.
Next, both parties will be required to file with the Court and serve upon each other completed Family Part Case Information Statements which require disclosure of detailed information regarding their income, expenses, assets and liabilities. In addition to exchanging Family Part Case Information Statements, the parties may engage in discovery. During discovery the parties can gather more information relevant to the divorce action through such methods as (a) interrogatories, which are written questions requiring written responses certified to be true, (b) depositions, which are verbal statements given by witnesses under oath in response to questions asked verbally, and (c) written requests for documents. Additionally, the parties may use requests for admissions to get one another to admit certain facts are true.
After the discovery phase has ended, the parties will usually attempt to agree upon a settlement. If the parties agree upon a settlement, then the terms of the settlement will be reduced to writing in a Marital Settlement Agreement. Thereafter, the Court will conduct a hearing to confirm that the parties freely and voluntarily entered into the Marital Settlement Agreement. Provided the Court is satisfied that the parties freely and voluntarily entered into the Marital Settlement Agreement, the Court will enter a Judgment of Divorce which incorporates by reference the terms of the Marital Settlement Agreement.
If the parties are unable to agree upon a settlement on their own, the Court will refer their case to the Early Settlement Program. When a case is referred to the Early Settlement Program, a panel of experienced matrimonial attorneys review the facts of the case and then make a settlement recommendation. In the event that the parties still cannot agree upon a settlement after participating in the Early Settlement Program, the Court will refer the parties to a Mandatory Post-Complimentary Dispute Event at which an experienced matrimonial attorney will try to facilitate a settlement between the parties.
Those cases which cannot be settled are tried before a Family Court Judge.
Contact Klatsky & Sciarrabone Today
There's a lot to consider when you are going through a divorce. The decisions made during this time will impact you and your family's life for quite a while. It's important to get guidance from a family law attorney who will advocate for you and your family. Contact us online or call us directly at 732-741-3200 to schedule a consultation.