Taking a Different Approach
Whether you are going through a divorce or thinking of filing, The Complete Guidebook to Divorce in New Jersey was created to help you understand the entire process.
If you’re thinking about getting a divorce, the best years of your life should be ahead of you. You’re in a situation that just isn’t working, and you want a “clean break.”
Unfortunately, too many people swap one bad situation for another. In the wrong circumstances, a divorce process can seem worse than the failing marriage that triggered it. Tensions and emotions will run high. The future will be uncertain, with open questions about healthcare, your home, your standard of living, and your children dominating your thoughts. Attorneys too often add to a divorcing couple’s troubles, leading the parties into impasses, encouraging unreasonable positions, entering drawn-out litigation, and ultimately securing court orders or settlements that please no one. All this comes at a great expense to both sides.
With the right attorney, though, you can anticipate and avoid many of these difficulties. The divorce process isn’t going to be easy – and you shouldn’t trust anyone who tells you otherwise – but with the right planning and preparation, a willingness to think creatively and compromise, and an attorney who won’t let important details slip by, you can move more quickly and with less expense toward that brighter future.
You can start by learning a bit about the process of divorce in New Jersey, working through some of the questions you might already have, and thinking about what you’ll want to ask when selecting your attorney.
Common Questions About Divorce
It’s not legally complicated to file for and secure a divorce in New Jersey. As long as you have lived in New Jersey for one year, you can file for divorce in any county where either spouse resides. In the past, one spouse would have to allege and provide evidence of some “fault” – for example infidelity, abandonment, drug or alcohol addiction, or cruelty. Since 2007, however, one party can file for a “no-fault” divorce on the grounds of “irreconcilable differences.” This just means that for six months prior to the filing the couple could not resolve their disagreements.
The burden of proof for “irreconcilable differences” is very low. Couples who feel wronged – as, for example, when one spouse is unfaithful – are often disappointed to learn that the other spouse’s wrongdoing will have no bearing on decisions about alimony, child support, and the division of assets. (Domestic abuse could have some bearing on child custody, and thereby have an indirect impact on child support payments, but even this won’t affect alimony or the division of assets.) Really, though, this is for the best. By filing for a no-fault divorce, you can save time (and therefore money), reduce acrimony, and more quickly move on with the rest of your life.
>> How long does it take to get a divorce in New Jersey?
Divorce cases in New Jersey can take as little as two to three months, or they can drag on for longer than a year. The determining factor is whether the case is contested or uncontested. If a couple has no disputes about the division of assets, alimony, child custody, and child support, the divorce is “uncontested,” and will be over quickly (at relatively little cost to the parties). In New Jersey, most divorces that begin “contested” become “uncontested” at some point – in other words, most cases do not go to trial.
>> How much will it cost to get a divorce?
Unfortunately, the cost of your divorce is not entirely in your control. The longer a divorce drags on, and the more professionals like forensic accountants and psychiatrists who become involved in asset and child custody disputes, the more expensive your divorce will be. Cost depends on the willingness of both parties to compromise and be reasonable.
In New Jersey there is no requirement for a person seeking a divorce to have a lawyer. If you have been married only a short time, are self-supporting, and have no children, assets, or debts, your natural inclination may be to save the money you would have to spend to retain an attorney.
Even in an uncontested divorce, however, an attorney can advise you about the most opportune time to file, and can aid you in filling out the necessary paperwork, speeding the process along. If there is even a hint of conflict or doubt, you will want an experienced divorce attorney, someone who’s handled a wide variety of divorces, to advise you about rights and precedents, anticipate problems, obtain and review important information from your spouse, and help you plan for the outcome you want.
Consider an attorney’s payment plan before making your choice. Attorneys (and their paralegals, and any other professionals like doctors or CPAs involved) bill by the hour. Most will charge a retainer up front, but some could offer other fee structuring options.
>> Should I create a will before filing for divorce?
You should consider writing a will before filing for divorce. The process is relatively easy and inexpensive, and could ensure that your loved ones get everything you intend for them.
All states have laws (called “intestacy statutes”) which determine what happens to the assets of someone who dies without a will. In New Jersey, if you die without a will leaving behind only a husband or wife (no surviving parents or children), your spouse will receive your entire estate. The same is true if you leave behind a spouse and children (if they are all children you had with that spouse). That means that if you die while thinking about a divorce or even in the middle of divorce proceedings, the spouse you intended to divorce could get your entire estate.
On the other hand, if before you died you had made a will leaving everything to your children and designating a friend or relative as the trustee, your spouse may not get anything after your death, except what is necessary to support your children.
It is true that in New Jersey, a surviving spouse who is left out of a will is nevertheless entitled to claim an elective share of the deceased spouse’s augmented estate – essentially, one-third of what is left in the estate after all necessary expenses have been paid. But spouses who did not live with the decedent or were involved in something that would justify a divorce (for example, adultery) lose the right to make such a claim.
If you’re a member of a military family, you know that the military impacts all aspects of your life. Divorce if one spouse or both spouses are in the military can be more complicated, but the state of New Jersey also makes some special accommodations for military families.
Military families may file for divorce in New Jersey if:
- The service member is currently stationed in New Jersey;
- The service member’s spouse currently resides in New Jersey; or
- The service member claims New Jersey as his or her permanent residence.
Like anyone being called to court, active duty military members must be personally served with a summons and a copy of the divorce action for a New Jersey court to have jurisdiction. If the divorce is uncontested (both parties want a divorce and have come to an agreement over support, child custody and how to divide debts and assets), the active duty spouse may waive personal service to speed up the process.
Many courts will allow service members stationed away from New Jersey to appear via telephone or video conference if immediate legal action is required.
If appearing remotely is not an option, the Servicemembers’ Civil Relief Act (SCRA) allows a court to stay, or delay, legal proceedings until the service member is available. However, a spouse may still be able to get a court order for temporary child support while the stay is in place.
>> How does the court determine child custody and support when one spouse is in the military?
Each state and each branch of the military has different rules governing the payment of child support and alimony. The court will set an amount based on the service member’s Leave and Earnings Statement and estimated cost of living expenses. In New Jersey, both child support and spousal support/alimony awards may not exceed 60% of a military member’s pay and allowances.
In an ideal world, divorcing spouses would agree upon and submit a child custody plan to the court. If the couple cannot agree to a plan, the judge will impose a plan that is in the best interests of the child or children.
New Jersey, like many other states, has a law that limits the court’s authority to make permanent child custody decisions during a parent’s military deployment. Courts must wait until at least 90 days after the end of a deployment to impose a permanent child custody order. The court can make a temporary custody decision while a parent is deployed and then later finalize it with or without modification.
>> What happens to a military pension and healthcare benefits after a divorce?
The Uniformed Services Former Spouses’ Protection Act (USFSPA) governs how to calculate and divide military retirement benefits in the event of a divorce. Military pensions are typically subject to division regardless of the length of the marriage.
Former military spouses may be eligible to continue their medical coverage under TRICARE depending on the length of the marriage and the number of years of active service.
Annulment: Another Option
Sometimes a married person will seek an annulment instead of a divorce, often for religious reasons. There are other advantages, though – for example, courts are unlikely to order alimony after an annulment. Whereas as divorce dissolves a marriage, an annulment declares that the marriage was never valid. Annulments are much harder to obtain. Grounds for an annulment include:
If one spouse wasn’t at least 18 years of age, or didn’t have required parental consent if they were under 18 when married, the marriage is void. Applicants for marriage who are younger than the age of 16 must obtain parental consent and have the consent approved in writing by any judge of the Superior Court, Chancery Division, Family part. It’s highly unlikely that a person could obtain a marriage license without parental and court approval, but if it did happen, that marriage could be annulled.
Impotence / Unable to Conceive
Courts will grant annulments on the grounds of impotence where a spouse is either unable to consummate the marriage and/or unable to conceive a child by engaging in sexual relations, or refuses to do so. This is gender neutral: sterility or refusal to engage in sexual relations is grounds for divorce no matter if the sterile or withholding party is a man or a woman.
To obtain an annulment on the ground of impotence, the moving party must prove that the other spouse was permanently and incurably impotent/unable to conceive (or unwilling to engage in sexual relations) when the marriage began and that the moving party did not discover the fact until after the marriage.
It is important to emphasize that any impotence/inability to conceive that originates after the marriage is not considered to fall within this ground for annulment.
Bigamy, or being married to multiple persons at the same time, is a crime in New Jersey. If your spouse had another living spouse at the time of your marriage, and you were unaware of your spouse’s existing marriage at the time of your marriage, the court may grant an annulment.
The courts have held that persons who lack the mental capacity to understand that they are getting married should not be bound by marriage.
Incapacity can result from a mental handicap or from intoxication.
For examples, couples married by a Reverend Elvis while drunk in Las Vegas often seek annulments on the grounds of incapacity.
New Jersey law prohibits all marriages between parents and children, including grandparents and grandchildren of every degree; between brothers and sisters of the half as well as the whole blood; and between aunts/uncles and nephews/nieces. (You can marry your first cousin in New Jersey.) Any incestuous marriage would be subject to annulment.
Fraudulent misrepresentations made by one spouse to another before a marriage can provide grounds for an annulment on the theory that the fraud affects the validity of consent to the marriage.
New Jersey cases require that the premarital fraudulent misrepresentation relates to a vital or essential part of the marital relationship and that the spouse seeking annulment has relied on the misrepresentation.
Typically, a spouse will file for an annulment on the grounds of fraud when:
- One spouse lies about his or her desire or to have children.
- One spouse lies about his or her addiction to drugs or alcohol.
- One spouse is an immigrant and uses the other spouse to stay in the country.
- One spouse misrepresents his or her religious beliefs and that factor was an essential part of the spouse’s decision to get married.
- A woman fails to advise her spouse at the time of their marriage that she is pregnant by another man.
- One spouse threatened the other with serious violence to induce the other spouse to agree to the marriage.
Annulments are generally rare, but a request for an annulment may be more likely to succeed in cases of short marriages with debts and assets to divide. New Jersey courts have, however, granted some annulments in complex cases involving children and alimony.
In the process of divorce mediation, a couple will try to reach their own settlement by talking through their concerns with an impartial mediator, retaining more control over their outcome and avoiding the uncertainty of the courts. Before you consider mediation, you should understand three central concepts about the process:
- Divorce mediators do not give legal advice; they do not and cannot represent either party.
- Divorce mediators have no power to make decisions. As a “neutral third party,” the mediator assists the divorcing parties in arriving at their own mutually acceptable tentative resolution of all issues.
- At the end of a successful mediation the mediator will prepare a Memorandum of Understanding (“MOU”). The MOU is not binding. Each party should review the MOU with his or her attorney, and, if acceptable, incorporate the terms of the MOU in the binding Settlement Agreement that will legally end the marriage.
Mediation might not be the best way to start off divorce proceedings, but it can offer an opportunity for couples to eliminate or narrow their differences. There are few reasons you should consider mediation:
- Mediation is less expensive than going to court.
- Mediation is quicker than going to court.
- Mediation is less adversarial than going to court. That means less stress for you. It also means you and your spouse will have an easier time co-parenting if you have any children.
- Mediation allows you greater control over your outcome.
- Mediation is confidential. Any sensitive information you or your spouse disclose in court would be public.
- Spouses who mediate their issues are more likely to comply with the terms of their separation agreement than with the terms of a court order.
However, if either party hasn’t provided all the necessary financial information, or if either party is obstinate, unwilling to compromise, or incapable of making tough decisions, mediation won’t work.
In New Jersey, the process of dividing up a couple’s debts and assets is called equitable distribution. Sometimes this means a husband gets half and a wife gets half, but this isn’t always the case – equitable means “fair,” not “equal.” Some things, like inheritance, might or might not be subject to distribution, depending on how one party used the asset. Pensions cause complications when the account holder is far from retirement age. Businesses also require careful consideration: they’re assets subject to equitable distribution, but they also contribute to income that would factor into alimony and child support payments. Assets subject to equitable distribution include:
- Bank accounts
- The marital house
- Other property (real estate)
- All household items
- Collectibles (goods that appreciate)
- Stocks and other investments
- Pensions and other retirement plans
- Social Security benefits (if the parties were married at least 10 years)
- Frequent flier miles and other corporate rewards
The New Jersey Legislature has specified 15 factors to consider in determining equitable distribution.
- 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 property 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;
- Each party’s contribution to the education, training or earning power of the other;
- Each party’s contribution 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 or children;
- The extent to which a party deferred achieving his/her career goals.
New Jersey law also grants broad latitude to judges to consider any other factors they deem relevant in a case.
>> Are any debts or assets excluded from equitable distribution?
Some debts and assets will not be part of the “marriage pot.” These include:
- Premarital assets or debts.
- Gifts to one party during the marriage from someone other than his/her spouse.
- Assets inherited by either party before or during the marriage.
- Assets acquired or debts incurred after one party files a divorce complaint.
There is a burden of proof on the party seeking to make an asset exempt, however. The party seeking an exemption must provide proof that one party obtained the debt or asset in question before the marriage. The debt or asset must have remained in only one party’s name. Lastly, the party must not have “comingled” assets or used marital funds to add value to an asset – as, for example, using money from a joint bank account to make improvements on an inherited house. In this case, the other spouse would be entitled to a share of that inheritance or premarital asset.
>> What happens when one spouse destroys marital property during or after a divorce?
Sometimes one spouse will attempt to punish the other by destroying marital property, especially treasured things like family photographs and hobby-related items. If a divorce is pending and the spouses are still living together, both should secure all precious personal belongings in another location. If the spouses are living separately, one should arrange to remove personal items from the marital home or, if this isn’t possible, take photographs to protect against the other spouse claiming the items never existed.
In a recent ruling, a New Jersey judge set forth a three-part test for any claim that one spouse destroyed marital property. The aggrieved party must demonstrate that:
- The other party did take, damage, or destroy the property, in violation of the aggrieved party’s rights.
- The aggrieved party genuinely wanted the items in question.
- The other party knew or should have known that the aggrieved party wanted the property, and that such property had a significant personal value to the aggrieved party.
If the claim meets these criteria, the judge may award a discretionary payment in compensation.
It’s important to remember, though, that litigation over personal property is generally not a wise expenditure, because the cost of such litigation almost always exceeds the value of the personal property.
In some cases, there is little disagreement over child custody, but in many divorces this is the most contentious issue. Naturally, both parents will think themselves well-equipped to care for a child; both parents will want to spend as much time as possible with their child, provide a nurturing home for that child, and make the major decisions in that child’s life.
A divorce will disrupt a child’s life at every level. There will be nothing like an “ideal” child custody situation in a divorce – only compromises. Whereas all other disputes in a divorce are essentially between two people, and about what’s “fair” between them, child custody disputes – at least in the court’s eyes – aren’t about the parents at all, but about the children, the real victims in a divorce. As such, the court will not consider either parent’s best interests, or what’s “fair” between the parents. In this dispute, the only thing that matters is the child’s best interests.
Of course, you and your spouse know you child better than anyone else. In a trial, a judge will hear from three attorneys – yours, your spouse’s, and a court-appointed attorney for your child – and make a decision about your child’s best interests. This might be the best course of action if your spouse is an abuser, or otherwise not likely to cooperate in mediation. But if you and your spouse can work together in mediation, you will likely be able to come to the best arrangement for meeting your child’s needs.
New Jersey law recognizes two types of child custody:
A parent with legal custody will have a say in all major decisions of a child’s life – for example, healthcare and education. New Jersey courts prefer parents to share legal custody. In cases of abuse or serious disagreement between the parents, courts may assign legal custody to only one parent, or assign legal custody to both but specify certain “domains” over which one parent will have no say.
This refers to where a child lives. Again, courts prefer parents to share physical custody in some way – it’s almost always in the child’s best interests to maintain a relationship with both parents – but an exactly even, 50/50 split is often hard to achieve. In most cases there will be one “custodial parent” and one “non-custodial parent,” or a “parent of primary residence” and a “parent of alternate residence.” This decision affects child support: the non-custodial parent will always pay the custodial parent, though this can flip-flop: child support is the right of the child, not of the parent.
There are a further three ways to assign this custody:
When one parent has sole custody, that parent is entitled to make both the major decisions relating to the child (such as medical choices and education) and the minor day-to-day decisions regarding the child—without having to obtain the consent of the other parent.
Joint Legal and/or Physical Custody
Courts prefer to assign joint legal custody. Under a joint legal custody arrangement, one parent serves as the child’s primary caretaker, but both parties participate in making the major decisions relating to the child.
When parents have joint physical custody, they share primary caretaking responsibilities for the child, usually through a shared residential arrangement in which the child lives at each parent’s home for significant amounts of time.
Split custody referrs to a custodial arrangement where there are two or more children, and each parent is awarded sole custody of one or more (but not all) of the children. This might happen when only one child alleges abuse but the court has serious reason to doubt this; or if the court considers children old enough to have significant say over the custodial arrangement and different children elect to live primarily with different parents.
>> How does a court determine which parent will get custody?
New Jersey child custody statues identify 15 factors to consider in all custody decisions:
||· The stability of the home environment offered.
>> If I have physical custody, can I move with my child?
Whether you can move with a child depends on where you want to move. If you are seeking to move to another state or far away from your current residence (and, more importantly, the non-custodial parent), you’re interfering with visitation rights. If you do not obtain permission from the non-custodial parent, you will have to file a “Relocation Application” with the court. There will be a trial. You will need to present evidence that the request is in “good faith” and that move will be in the child’s best interests. You will also need to propose a parenting time plan that preserves the child’s relationship with the other parent as well as possible under the circumstances.
>> Do grandparents have visitation rights?
The state of New Jersey recognizes the importance of the grandparent-grandchild relationship. The law tries to balance this relationship with the right of a parent to raise a child as he or she sees fit.
If a child’s parent preventing visits from that child’s grandparent, the grandparent can petition the Family Court for visitation time. The grandparent must prove a “special need for continued contact,” one that exceeds “an ordinary grandparent-child relationship and its unwanted termination.” New Jersey courts also require a grandparent to show that a specific harm will result if the parent continues to deny visitation. It is not enough to simply say that a child needs grandparents in his or her life; New Jersey family courts require a grandparent to specify how the grandchild will be harmed if visitation is denied.
This is a very tough standard, but a recent decision by the New Jersey Appellate Division may help ease the burden on grandparents. In D.G.G. v. B.B.G., the Appellate Division reaffirmed that “the death of a parent could create a ‘special need for continued contact’ between the child and the grandparents from the deceased parent’s side of the family.”
On its face, the issue of child support in the event of a divorce in New Jersey looks pretty straightforward. If you have a child, you have to pay child support. An easy to complete, one-page worksheet called the New Jersey Child Support Guidelines calculates support payments (as long as both spouses’ combined net income is under $187,600). The noncustodial spouse will pay more or less based on the estimated cost of childcare, any alimony involved in the divorce, his or her ability to pay, and the number of overnights the child spends with that parent.
It seems simple, but there are many more variables to consider. Many expenses of supporting a child – such as private school tuition, summer camps, and extracurricular – aren’t necessarily included in the child support calculations. New Jersey law also mandates that parents cover a child’s college tuition and expenses, so long as the child has exhausted scholarships, other financial aid, and loans. This will be in addition to child support payments. Depending on the information available and brought to the court’s attention, child support payments could vary by several thousand dollars a year. You’ll need the counsel of an experienced family law attorney to protect your child’s rights, and to make sure the result of asset distribution, alimony, and child support is fair and truly equitable.
>> When do child support payments end?
It’s a common misconception that the child support obligation ceases when a child turns 18. New Jersey law stipulates that child support payments will cease when a child is “emancipated.” This used to be an event triggered by various factors and left to a significant degree up to the custodial parent’s discretion. A child might be emancipated upon joining the military, moving out of his or her parent’s home and starting a job, or graduating college. However, following a new law in effect since February 1, 2017, emancipation occurs automatically at age 19, unless:
- A court order specified another age for the termination of child support/emancipation;
- The custodial parent submits a written request seeking the continuation of child support prior to the child reaching age 19; or
- The child receiving support is in an out-of-home placement through the Division of Child Protection and Permanency.
A parent receiving child support may petition to extend emancipation if:
- The child is still in high school;
- The child is a full time post-secondary education student; or
- The child has a physical or mental disability, as determined by a federal or ttate government agency, that existed prior to the child reaching the age of 19 and requires continued child support.
Previously, the burden was on the person paying child support to request that the child be emancipated at age 18. Under the new law, the burden has shifted to the child support recipient to request that child support continue beyond the child reaching age 19.
>> How do a child’s college expenses factor into child support?
- You have to consider college when planning to care for a child after divorce, for multiple reasons. For one, a child’s college expenses fall outside of child support payments, but parents are still obligated to contribute financially, even after a child has been “emancipated.” Because there is no obligation for married parents to contribute to a child’s college costs, this remains a contentious issue, and is fiercely litigated. Because of recent cases, the New Jersey Legislature may pass a bill addressing this concern. If you’re worried about paying for a child’s college expenses after your divorce, you should consult an experienced family law attorney about the particulars of your case.
>> Do divorced couples have to pay for a child’s graduate school expenses?
The case of Newburgh v. Arrigo (1982), the case that established in New Jersey the obligation of divorced parents to pay for college expenses, included postgraduate education “in appropriate circumstances.”
A New Jersey judge recently ruled that a child with a bachelor’s degree “is generally and logically more able to become financially independent,” and rejected a parent’s request that her former spouse pay for their daughter’s graduate school. The judge ruled that:
“[I]f an adult child and college graduate elects to continue his or her education pursuits through graduate school and asserts either directly or indirectly through a parent that he or she should not be emancipated and that the other parent should still be responsible for financial maintenance of any sort, then it is the applicant’s burden of proof and persuasion to demonstrate why an order for such maintenance, as opposed to independence, is appropriate, necessary and equitable under the circumstances.”
>> Can I pay child support directly to my child?
In the recent case of Kayahan v. Kayahan a judge ruled that in certain cases, where a child is over the age of eighteen and not emancipated and has demonstrated an appropriate level of responsibility with handling money, it may be appropriate for a court to award part of a child support payment directly to the child. The judge noted that such an arrangement might be a valuable learning experience for a young adult in managing his or her own expenses.
The court also noted that some parents would be better candidates for this type of arrangement than others. A noncustodial parent who has been tardy in making child support payments, or who has willfully refused to pay support in the past, would be considered a bad candidate.
In addition, as part of its inquiry into whether the direct payment to the child of some portion of child support is appropriate, the Judge said that a court must consider the amount of support that still remains to be paid to the custodial parent. If the custodial parent would not receive enough child support to meet basic living expenses of the child’s home if a portion was
>> My spouse isn’t paying court-ordered child support. What can I do?
If a court ordered child support and your spouse reduces or ends payments without permission from you or from the court, your attorney can file an “application for enforcement.”
The court can suspend the defaulting parent’s driver’s license, professional license, or passport if he or she refuses to pay child support. The court will also report child support arrearages to the three credit bureaus; these constitute a lien on the defaulting parent’s real estate, making it impossible to sell or refinance that real estate until he or she fully satisfies the arrearages. Other remedies include seizure of bank accounts, personal injury or worker’s compensation awards, lottery winnings, and income tax refunds.
When necessary, the court has the power to issue a bench warrant for the arrest of the defaulting parent. Following his or her incarceration in the county jail, the defaulting parent will be taken before a judge who will determine the amount of the child support arrears that the defaulting parent must pay to be released from jail.
“Alimony” comes from the Latin word for nourishment. Sometimes called spousal support or maintenance, alimony comes in the form of payment the spouse with the higher income makes to the spouse with the lower income.
In New Jersey, there are different types of alimony to meet different needs:
OPEN DURATIONAL ALIMONY
“Open durational” alimony replaced “permanent” alimony in long marriages when the New Jersey Legislature passed the Alimony Reform Act of 2014. It isn’t permanent, but it continues until certain “triggers” occur. Open durational alimony, which has an open term, generally applies to marriages which have lasted for at least 20 years. The New Jersey Alimony Reform Act of 2014 provides that in divorces involving marriages of less than 20 years, a Family Court may not award alimony for more than the length of the marriage unless the judge decides there are “exceptional circumstances.”
Rehabilitative alimony is a short-term award. This type of alimony enables the former spouse to go back to school or obtain some type of job training that will enable him or her to re-enter the workforce. In many cases, rehabilitative alimony will consist of the non-dependent spouse paying for the college tuition or the job training expenses for the dependent spouse.
LIMITED DURATION ALIMONY
Limited duration alimony, sometimes called “term alimony,” ends at a predetermined time. The court often awards limited duration alimony when the marriage was a short one or when a rehabilitative alimony award is not appropriate, but the circumstances of the case justify some award of financial support.
A reimbursement alimony award compensates one spouse for the financial contributions that he or she has made to the professional training or career development of the other spouse, thereby enhancing that spouse’s future earning capacity.
In the interest of a just result, New Jersey courts may make alimony awards that combine the various categories.
In addition, either party can petition a court for “pendente lite alimony” for the duration of the mediation or litigation process. Pendente lite means “pending the litigation.” This is a temporary award, which is designed to maintain the “status quo,” including payment of the marital bills and expenses necessary to maintain the dependent spouse at the standard of living enjoyed during the marriage until the divorce case is completed.
>> How does a court determine the amount and duration of alimony payments?
New Jersey law sets forth 14 factors judges must consider when deciding on alimony. These are:
- The actual need and ability of the parties to pay.
- The duration of the marriage or civil union.
- The age and physical and emotional health of the parties.
- 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.
- The earning capacities, educational levels, vocational skills, and employability of the parties.
- The length of absence from the job market of the party seeking maintenance.
- Parental responsibilities.
- 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.
- 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.
- 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.
- The income available to either party through investment of any assets held by that party.
- 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.
- The nature, amount, and length of pendente lite support paid, if any.
The law also grants judges broad discretion to consider any factors they deem relevant in a case.
>> What if my former spouse dies before finishing alimony or child support payments?
The court assumes that you’ll be relying on child support and alimony payments until the court-ordered or agreed-upon time those payments cease. If your spouse dies, those payments will stop. One way to secure this income stream is with a life insurance policy. The amount of life insurance required to secure these payments depends, of course, upon the amount of the payments and the length of time they’ll be paid. If you’re the party receiving alimony or child support, be sure to name yourself as “owner” of the life insurance policy, and not “beneficiary” – that way you’ll receive regular communication from the policy provider, and will know if your former spouse stops payments or tries to alter the policy. Consult an experienced family law attorney to discuss how to protect the alimony and child support payments to which you’re entitled.
>> What happens to alimony when one spouse retires?
Alimony payments generally cease when the paying spouse retires, if they haven’t ceased already. Under the New Jersey Alimony Reform Act of 2014, a court will consider a petition to terminate alimony once the paying party reaches retirement age, determined by when a person is eligible for Social Security benefits (66 or 67). A person may petition to retire early and end alimony payments, so long as the court deems the request reasonable and in “good faith.” The court will consider:
- The age and health of the parties at the time of the application;
- The obligor’s field of employment and the generally accepted age of retirement for those in that field;
- The age when the obligor becomes eligible for retirement at the obligor’s place of employment, including mandatory retirement dates or the dates upon which continued employment would no longer increase retirement benefits;
- The obligor’s motives in retiring, including any pressures to retire applied by the obligor’s employer or incentive plans offered by the obligor’s employer;
- The reasonable expectations of the parties regarding retirement during the marriage or civil union and at the time of the divorce or dissolution;
- The ability of the obligor to maintain support payments following retirement, including whether the obligor will continue to be employed part-time or work reduced hours;
- The obligee’s level of financial independence and the financial impact of the obligor’s retirement upon the obligee; and
- Any other relevant factors affecting the obligor’s decision to retire and the parties’ respective financial positions.
>> What is “palimony”?
“Palimony” is an informal term for an alimony-like arrangement between an unmarried couple. In January 2010 the New Jersey Legislature passed an amendment to the Statue of Frauds, requiring that “palimony” agreements be in writing, and that each party have independent legal advice.
If you are in a long-term relationship without an intention to marry and you’re concerned about securing your financial stability in the future should the arrangement ever end, talk to an experienced New Jersey family lawyer.
Statistics tell us that one in every four women experiences domestic violence in her lifetime. The cost of that violence is several billion dollars each year for medical and mental health services. Domestic violence isn’t limited to women, either – many men are victims – and domestic violence isn’t necessarily physical: it can include emotional abuse and terroristic threats. Domestic violence could include:
· Terroristic Threats
· Criminal Restraint
· Sexual Assault
· Criminal Sexual Contact
· False Imprisonment
· Criminal Mischief
· Criminal Trespass
If you’re the victim of domestic violence, call the police first: you need to ensure your safety before thinking about legal action. Then you can go to court and petition for a temporary restraining order (TRO), which will remove the abuser from your house and keep him or her away from you.
On the other hand, many spouses in conflict make false charges of domestic violence to secure a temporary protection order and keep the other spouse out of the house. If you’ve been accused of domestic violence and/or served a TRO, call an experienced attorney right away. Read the order carefully and be sure not to violate any of its terms. The way you comport yourself now could have a massive impact on child custody, if you have children. Any violation of a temporary or final restraining order could result in the suspension of your driver’s license, other professional license, or passport, and could even land you on jail.
>> Is it possible to lift a Final Restraining Order?
It rarely happens, but it is possible to have a court lift a final restraining order. If you petition to have such an order against you lifted, the court will consider:
- whether the victim consented to lift the restraining order;
- whether the victim fears the defendant;
- the nature of the relationship between the parties today;
- the number of times that the defendant has been convicted of contempt for violating the order;
- whether the defendant has a continuing involvement with drug or alcohol abuse;
- whether the defendant has been involved in other violent acts with other persons;
- whether the defendant has engaged in counseling;
- the age and health of the defendant;
- whether the victim is acting in good faith when opposing the defendant’s request;
- whether another jurisdiction has entered a restraining order protecting the victim from the defendant; and
- other factors the judge deems relevant.
Even if you’ve had the best legal representation and secured a court order or settlement agreement covering all your concerns about the division of assets, child custody, child support, and spousal support, your divorce might not be the “clean break” you’d hoped for. Complications will arise. The other party might fail to uphold part of a court order or settlement agreement. The circumstances that dictated the alimony payments or parent visitation time could change – as for example, if one parent moves or if one party loses a job. Some decisions, especially when it comes to raising a child, might have to be put off until years after a divorce.
If you need to modify a court order or separation agreement for any reason, you’ll have to file a petition with the local court, and be prepared to demonstrate the change in your circumstances. You’ll need the help of an experienced divorce attorney to move you quickly through these issues, and minimize the impact on your post-divorce life.
>> What happens to alimony and child support if the payee starts a new relationship or remarries after a divorce?
Cohabitation could be grounds for ending alimony payments. The New Jersey 2014 Alimony Reform Act states that cohabitation “involves a mutually supportive, intimate personal relationship in which a couple has undertaken duties and privileges that are commonly associated with marriage or civil union but does not necessarily maintain a single common household.” Under this definition, a couple does not actually have to be living together to qualify as “cohabitating” in the eyes of a court. Instead, the court will determine cohabitation based on the following factors:
- Whether the couple have intertwined finances such as joint bank accounts.
- Whether they share joint responsibility for living expenses.
- Whether they are recognized as a couple in their social or family circle.
- Whether they live together or, if not, how frequently they have contact and how long they’ve been in the relationship.
- Whether they share household chores.
- Whether the person receiving alimony has received an enforceable “palimony” promise from his or her significant other.
- Any other relevant evidence.
The New Jersey 2014 Alimony Reform Act provides that upon a showing of “cohabitation,” alimony may be suspended or terminated. Therefore, both the alimony payor and the alimony recipient have a significant financial stake in the result of any Motion filed with the New Jersey Family Court on that issue.
Child support, however, is the right of the child, not the parent receiving payments. If that parent enters into a new relationship or remarries – even if that parent enters a subsequent marriage with a multimillionaire – that will not affect the other parent’s child support obligation.
Salvaggio Law Group LLC devotes its entire practice to New Jersey Family Law matters, including those related to child support and payment of college expenses. If you want to talk, please call us at 973-459-4927 or fill out the Contact Form on our firm’s website.