As the times change, so do divorce laws. But a surprising number of people still retain old perceptions about New Jersey divorce laws that are no longer true — or never were true!
Following are some of the most common misconceptions about divorces that we encounter in NJ…
Prenuptial agreements are only for the very wealthy
It used to be the case that mainly wealthy individuals prepared prenuptial agreements to protect significant assets.
However, with changing times, more people get married later in life having already accumulated assets. With this trend, the demand for prenuptial and postnuptial agreements has increased.
The view that it’s not “romantic” or is a negative way of approaching a marriage has been replaced with more practical realizations. Many people now view the financial clarity that a prenuptial provides as a healthy and positive thing for a marriage. After all, many marriages break down because of financial pressures, so it may be advantageous to get everything out in the open upfront.
If the marriage does eventually fail, the prenuptial can be the guide for the divorce settlement and save many discussions, negotiations, and disputes.
I need to be separated for 18 months before a divorce
In New Jersey, spouses used to have to show that they had been separated for 18 months to get a no-fault divorce.
However, NJ recently recognized “irreconcilable differences” as the basis for another type of no-fault divorce. This requires a six-month waiting period but no physical “separation”. When filing for divorce, it is enough to say that “irreconcilable differences” have caused the breakdown of the marriage for at least six months. This requires no proof.
NJ is one of the states that also allows at-fault divorces. These can be based on a variety of legal grounds, including extreme mental/physical cruelty, sexually deviant behavior, substance addiction, adultery, abandonment, or desertion. You can also file for divorce based on institutionalization or imprisonment.
Each legal ground has unique requirements so it’s a fallacy that you must wait 18 months. That regulation applies only to one specific type of divorce that is rarely used nowadays.
I can’t get alimony because we were married for less than 10 years
Alimony awards in New Jersey are designed to ease the transition to independent and self-sufficient lives and are based on many factors — not solely on the length of the marriage.
The general idea is that alimony payments help spouses maintain a comparable lifestyle to that enjoyed during the marriage.
In making the judgment, the court will consider the contribution of each partner to the marriage, the ability of the paying spouse to meet payments, the age and health of each party, the marital standard of living, the earning capabilities and employability of the non-working spouse (if applicable), the equitable distribution of marital property and more. As you can see, much more than the length of the marriage is factored in.
You can only get permanent alimony if you were married for more than 10 years
Alimony is usually awarded for a temporary period, based largely on the length of the marriage but no defined period is set out in divorce law.
Permanent alimony may be awarded in some cases of very lengthy marriages but with the 2014 alimony law changes in NJ, this is likely to be closer to 20 years rather than 10 years — and a marriage of 20 years or more is not guaranteed to result in permanent alimony.
You cannot claim alimony if you committed adultery during the marriage
This is not borne out by the facts. Neither adultery nor any form of “bad behavior” by either spouse is included in the 14 factors laid out in New Jersey statute, NJSA 2A:34-23(b) about alimony.
However, the final factor listed says “any other factors which the court may deem relevant”, so it is not clearcut. Ultimately, the judge can consider any relevant factor but it’s fairly safe to assume that adultery rarely comes into play because of the principle of fairness that dictates family court rulings.
Common law couples have the same rights as married couples
New Jersey does not recognize common-law marriage — and hasn’t done so since 1939. So, the legal rights to spousal support and the equitable distribution of property that apply to married spouses do not apply to unmarried couples who are separating.
Even if you have been living together for 10 years as partners but have not married, the rights afforded to married spouses are not extended to you.
If someone with an enforceable common-law marriage from another state moves to NJ, this may be recognized by the courts here, as required under the U.S. Constitution, which mandates that each state must give “full faith and credit” to all “public acts, records, and judicial proceedings of every other state.”
Legal separation is the precursor of divorce
Like common-law marriages, legal separation is not recognized in New Jersey.
Couples may separate for some time and draw up a separation agreement that serves as the guideline document for a subsequent divorce agreement — but it is not a legal requirement.
Couples may also remain separated without ever getting divorced. This is often due to religious or financial reasons (such as the insurance and tax benefits of remaining married). However, the law recognizes these couples simply as married rather than “legally separated”.
Fathers can’t get custody of the children after divorce
Historically, mothers have won more child custody cases in New Jersey than fathers but that is changing as more mothers have careers to think of as well as families.
Fathers certainly have equal rights to custody in NJ. The statutes clearly state that “In any proceeding involving the custody of a minor child, the rights of both parents shall be equal…”
Physical custody refers to who the child primarily resides with while legal custody refers to who makes the decisions about the child’s upbringing (education, health, welfare, etc.).
Increasingly, the courts here are awarding full custody to fathers or shared custody (with at least two overnights per week on average with the children). All decisions must be made in the best interests of the children so if staying the majority of the time with the father meets that basic criterion, the courts can grant full physical custody to the father.
New Jersey favors shared custody and co-parenting arrangements as this is seen as the best arrangement for the children unless proven otherwise. Legal custody is usually shared as the input of both parents is presumed to be best for raising a child.
Ideally, parents should work between themselves to reach a suitable custody agreement along these lines.
A custodial parent cannot leave NJ with the children without the other parent’s permission
Any parent is free to come and go and leave the state with their child if there has been no litigation involving the children concerning custody, parenting time, or child support.
The best solution if you are traveling interstate for a period with the children is to inform the other parents as a matter of courtesy. After all, if you have shared custody, you are jointly responsible for the children.
If there has been past litigation involving custody, parenting or child support and the non-custodial parent opposes you traveling interstate with the children, you can apply to the court for permission. In many cases, you only need to show the itinerary for the trip and the planned return day.
If you need assistance with a divorce in New Jersey, contact the Law Office of Steven M. Cytryn, LLC for an initial consultation.
