Divorce FAQ

A divorce is the legal process by which a court dissolves the bonds of marriage between two spouses. As part of a divorce, a court is also empowered to decide related issues, such as how much alimony and child support will be paid, how to divide the spouses’ marital property, and how the spouses will share custody of their children.

In addition to a divorce from the bonds of matrimony, New Jersey also allows spouses to enter into a divorce from bed and board. Under a divorce from bed and board, the spouses remain legally married, but are still permitted to resolve all of their issues as part of their divorce (e.g., custody, property division, support, etc.).

The original rationale for permitting a divorce from bed and board was to allow spouses who had moral or religious objections to a divorce to resolve all of their issues and separate from one another. More recently, a divorce from bed and board can be used to allow the parties to remain on the same health insurance plan following the divorce. Of course, since the parties are still legally married, neither can remarry until the divorce from bed and board is converted into a formal divorce.

Generally, regardless of where you got married, you can get divorced in New Jersey if either you or your spouse have been a resident of New Jersey for at least one year before you file for divorce. There is no residency requirement if you seek to file for divorce on the ground of adultery, but this presents its own set of considerations, which would need to be discussed in greater detail with your attorney.

New Jersey law provides nine different legal grounds for divorce, including adultery, extreme cruelty, desertion, 18-month separation, imprisonment, institutionalization and addiction, but the most common ground for divorce, and least burdensome to prove, is “irreconcilable differences”. Irreconcilable differences means that the marriage has broken down for a period of at least six months, and the circumstances appear that the marriage should be dissolved and there is no reasonable prospect of reconciliation.

New Jersey has two no-fault grounds for divorce: irreconcilable differences and 18-month separation. In either case, neither party has to prove fault to obtain a divorce. In addition, New Jersey also has several fault-based grounds for divorce, including adultery and extreme cruelty. If you seek a divorce on any fault-based grounds, then you must prove your claim to obtain a divorce.

Beyond the actual grounds for divorce, regardless of whether you seek a fault or no-fault divorce, the issue of fault is generally not a relevant factor in handling the underlying issues in a divorce. In other words, fault will generally not have any impact on alimony or how property is divided between spouses. Nevertheless, New Jersey courts have created a very narrow exception in cases where marital misconduct is so egregious that it has materially impacted the other spouse’s economic benefit from the marriage (e.g., embezzling funds from the family business). In such cases, a court may take into account such circumstances when awarding alimony or dividing property between spouses.

In New Jersey, a divorce is a legal proceeding that begins when one spouse files a “complaint”, which sets forth the grounds for divorce and relief sought. Once the complaint is filed, the other spouse has the opportunity to “answer” the complaint, and file his or her own “counterclaim”.

After these initial documents are filed, both spouses engage in “discovery”, during which they each provide the other party with information that will be relevant to the divorce. The most common type of information that must be shared in a divorce is financial information and information related to property and assets owned by the spouses. The purpose of discovery is to allow both parties to determine what property must be divided, how to divide such property, and whether and to what extent alimony and child support should be paid.

Once discovery is complete or close to being complete, both spouses, along with their attorneys, attend an Early Settlement Panel (“ESP”), which is made up of two New Jersey attorneys who have experience with handling divorces. The purpose of the ESP is to try and resolve any outstanding economic issues between the parties so that the divorce can be resolved without the need for a trial.

If the parties are unable to resolve all of their issues, then a trial is necessary. During a trial, both spouses are permitted to introduce evidence, call witnesses and testify themselves as to the relevant facts that are necessary for the judge to divide marital property, award alimony, set child support, determine child custody and visitation rights and decide any other issues that might be applicable.

After the divorce is finalized, it is generally necessary to handle post-divorce matters, such as actually completing the transfer of assets and division of property that was agreed to or ordered as part of the divorce.

Post-judgment motions may also be necessary if a party is not complying with the divorce judgment or if a change of circumstances warrants a modification of the terms of the divorce.

New Jersey law allows a spouse to receive support during divorce proceedings. This type of support is called pendente lite support, which literally means “pending the litigation”. The purpose of pendente lite support is to allow the recipient spouse to care for him or herself, and the children, while the divorce proceedings are ongoing.

In some cases, the spouses can agree on a support amount, which saves the time, money and effort of having to go to court to request pendente lite support. On the other hand, if the spouses cannot agree, the spouse in need can file a motion with the court requesting such relief. In general, courts will focus on the need of the party seeking the support, along with the financial circumstances of the parties both prior to and after the filing of the divorce, to determine whether a pendente lite award is appropriate.

There are two types of custody: legal and physical. Legal custody involves being able to make important decisions on behalf of the children (e.g., medical, educational, etc.). Physical custody involves actually being able to spend time with the children. In most cases, it is very common for spouses to share both legal and physical custody during and after a divorce. That being said, even where both spouses are sharing custody, it is also common for one spouse to have primary physical custody, which generally means that the children reside with that spouse, and then have the opportunity to visit and spend time with the other spouse.

Terms of custody and visitation are generally agreed to between the spouses as part of the divorce, but if spouses cannot agree, a mediator, parental coordinator or even the court might have to get involved to help resolve the issue.

Under New Jersey law, marital property is subject to “equitable distribution”, which means that it is divided equitably, but not necessarily equally. Trying to determine how to divide marital property equitably can be very challenging, but New Jersey law provides a non-exhaustive list of factors to consider, including the length of the marriage, the type and value of the property being divided, the economic circumstances of the parties, the parties’ contributions to the education or earning power of the other, and the standard of living established during the marriage.

In many cases, it is better if the parties can mutually agree and compromise on how their property should be divided, instead of having a court decide, because the parties generally have a better understanding of their own needs and how to most effectively and equitably divide their property.

As part of every divorce, the court is empowered to divide the marital property of both spouses. Marital property is property that is acquired by either spouse during the marriage. This can include homes, cars, jewelry, bank accounts, collections, insurance, retirement benefits, pension plans and even pets. It does not matter whether one spouse makes all of the money during the marriage, or the spouses keep their assets separate or in their own names, as long as the property was acquired after the parties were married.

There are two notable exceptions. Both inheritance and gifts are not considered marital property, even if they are acquired during a marriage. That said, such property can become marital property if the other spouse gains an interest in the property, or the property is intermingled with marital property.

On the other hand, property brought into the marriage is generally not divisible, unless such property was intermingled during the marriage, or the other spouse gained an interest in such property during the marriage.

There are many gray areas when it comes to property division, and it is important to speak with an experienced matrimonial attorney to understand your rights with regard to the division of property as part of your divorce.

In general, property brought into the marriage is not considered marital property unless the other spouse gains an interest in the property, or the property is intermingled with marital property.

Nevertheless, unless specific steps are taken to keep non-marital property separate, it is very common for property brought into the marriage to become marital property, which means it can be divided between both spouses during a divorce.

For example, if you have a bank account before you get married, and then put your spouse’s name on that account during the marriage, your spouse has now gained an interest in that property, and so it has become marital property.

Similarly, even if you never put your spouse’s name on the bank account, but then use money from that bank account for marital purposes (e.g., putting an addition on the house, going on vacations, paying for your children’s summer camp), you have intermingled those assets, and so they also have likely become marital property.

Much like ordinary property, a business is generally considered an asset that is divisible in the event of a divorce. Nevertheless, there are various considerations as to how a business should be divided, it at all. In many cases, it is more practical and equitable to leave the business entity in-tact, and to either allow the other spouse to receive a larger share of other assets as part of the property division or share in a portion of the business income. Assessing the value of a business and determining how to handle the business as part of a divorce is a very fact-specific analysis that involves considering the circumstances of each case.

Debt is considered to be “property”, just like your car or house. As a result, in the same way spouses must generally divide their property during a divorce, they also must divide their debt, regardless of who actually incurred the debt. For example, if only one spouse’s name is on the mortgage used to purchase the marital home, the debt would still belong to both spouses, since the property is “marital” property. Nevertheless, there may be limited exceptions to this general rule, such as where one spouse incurred significant debt for non-marital expenses, such as to perpetuate an affair, or to fund a gambling habit.

Where both parties maintain their own insurance through their employers, a divorce usually does not cause any issues. Issues tend to arise, however, in situations where one spouse is included on the other spouse’s policy. Once divorced, the spouse can no longer be included on the policy because the parties are no longer married. In such situations, the insurance policy usually provides a reduced-rate policy under COBRA for a certain number of months, but once that period ends, the spouse has to obtain his or her own policy. Nevertheless, it is possible to negotiate payment or subsidizing of health insurance as part of a divorce. It should also be noted that children will generally remain on the spouse’s existing policy.

The short answer is “yes”, but it may not come to that. It is very common for both parties to share custody of their children after a divorce because that is generally believed to be in the children’s “best interests”. Custody is typically only restricted where a spouse can show that there is some type of physical or emotional harm that will occur if the children are allowed to be in the custody of the other spouse.

Fortunately, even if spouses disagree on the issue of custody at the outset of a divorce, there are ways for the spouses to resolve these issues together, such as mediation or the use of parenting coordinators, instead of having a judge make the decisions.

New Jersey does not have any specific formula for the calculation of alimony. Instead, New Jersey law provides a non-exhaustive list of factors to consider, including the length of the marriage, the type and value of the assets of the parties, the economic circumstances of the parties, the parties’ education and employability, and the standard of living established during the marriage.

Most significantly, courts tend to focus on the “marital lifestyle” the parties had during the marriage, and attempt to use alimony as a way of ensuring both parties are able to maintain that lifestyle. Ultimately, as with the division of marital property, the parties are generally in a better position than the courts to determine how much alimony should be paid, and for how long.

Unlike alimony, child support is calculated based on a specific formula, which generally takes into consideration the income of the parties, alimony paid or received, number and age of the children, and the amount of time the children spend with each parent.

Other factors, such as payment of health insurance, day care expenses and even children from other relationships can also be factored in.

The current formula is applicable in cases where the combined income of the spouses is $187,200 or less. In the event the combined spousal income is greater than $187,200, a discretionary amount of support can be added to the base limit.

Child support is meant to cover basic living expenses for a child, including housing, food, clothes, transportation, entertainment and unreimbursed health care expenses up to $250 a year. Beyond this, spouses have to agree if, when and how to pay for additional expenses such as private school, summer camp, cars, college and graduate school expenses and other miscellaneous expenses. This can be challenging to think about if a divorce occurs when a child is too young for these expenses to be considered, but is a topic that should be discussed with your attorney because they should not be left to chance later on.

The length of a marriage is a very important aspect of determining the division of property and payment of alimony as part of a divorce. There is no set formula for the division of property or the payment of alimony, and courts focus on a non-exhaustive list of factors of which the length of marriage is one to consider.

Under the newly amended alimony statute, for marriages less than 20 years, alimony cannot last longer than the length of the marriage, unless there exist exceptional circumstances as to why it should last longer.

Both alimony and child support can be changed after a divorce if the party seeking the change can show a change of circumstances that warrants a change in the support amount. Generally, the changed circumstances must be significant and long-lasting. For example, the loss of a job or a health issue, for a short time, may not be sufficient to constitute a changed circumstance. On the other hand, a significant and debilitating illness or change in employment status can be the basis for either an increase or decrease in the support amount.