New Jersey offers a no-fault divorce, even though they are not a pure “no-fault” state since they offer the option of having a fault divorce. A no-fault divorce is when the couple has irreconcilable differences. Basically, the couple does not get along, has too many differences, and no chance of getting back together. The irreconcilable differences which caused a break down of the marriage must be apparent for 6 or more months. This law does not have a separation requirement, meaning the two spouses can be active living together when they file for divorce. Moreover, this ground for divorce may be appropriate to allege in certain situations such as when two people have simply grown apart and wish to end their marriage. However, the couple still wish to reside together until the divorce is finalized. The new cause of action brings a level of civility and practicality to matrimonial practice. This ground for divorce eliminates the need for spouses to allege wrongdoing on their spouse’s part.
Raising a child has daily costs. From diapers and wipes, to new clothes and uniforms, especially college time… Raising a child is an expensive task. When receiving child support, often there are times the ex-spouses argue over what expenses need to be paid for without help from the other parent.
Child Support is designed to cover a child’s basic living expenses. It goes towards their “rent and utilities” for each month. It is also made to cover the child’s daily needs i.e.: food, clothing, toothbrushes and paste, etc. There is grey area in which the parents argue over who is likely to pay… If a child is invited to a birthday party and they need to bring a gift, this is considered ordinary expenses for which a parent would be expected to pay. In contrast, if a child needs to buy a certain type of computer for school, they cost is usually split between the parents.
Some child support’s details differ from case-to-case. Commonly, medical expenses are split down the middle. When you take the child school supply shopping, it is unwise to keep every receipt for the supplies and bring to court to argue the other parent must pay for half. This is all included in the monthly child support. When a parent is with the child they should expect to pay out of pocket for most things.
For parents paying child support, it is important to keep in mind the child support was written up knowing you were going to see the child and might have to pay for some expenses out of pocket when with child… The child support was calculated while taking into account that you would have to pay some expenses for your child while your child is in your custody. The child support could have been much higher cost if you did not have contact with the child.
It is better to simply be wise and budget appropriately for these expenses. That said, you can and should discuss these issues with your attorney, especially if you believe that your child support order specifically states otherwise.
When filing for divorce, a spouse is presented with usually two options. The spouse must choose if they wish to have a fault grounds divorce, or no-fault grounds divorce.
This type of divorce does not particularly “blame” either spouse for the failure of the marriage. Instead, the no-fault grounds is usually based on “irreconcilable differences” or “irreparable breakdown of the marriage”, in accordance to the state laws. Basically, the spouses do not get along and the marriage is past the point of repair. There are many states who recognize no-fault grounds if the couple has been separated for a certain amount of time. Also, some states require the spouse who alludes to irreconcilable differences or an irretrievable breakdown of the marriage to be separated for a certain period of time BEFORE they can file for divorce.
When using this ground for divorce, neither spouses need to testify in court about why their marriage has failed. They must only prove that they are eligible for divorce by meeting residency requirements (a spouse must live in NJ for 1 year prior to divorce).
A spouse may choose to get a fault grounds divorce if they do not meet the requirements for a non-fault grounds divorce. Other reasons could include they may acquire some other benefit from a fault grounds divorce. The spouse filing for fault grounds must prove the fault in court. Common fault grounds for divorce include:
Cruel and Inhumane Treatment
This conduct includes extreme cohabitation threats that the other spouse’s physical or mental health is being endangered. Ongoing physical or emotional abuse may be proof of this ground
In New Jersey, you do not have to meet the required one year residency prior to filing if you are filing under the grounds of adultery. It is a common fault-based divorce. This is proven with circumstantial evidence, such as a spouse and third party have become romantically involved and had the opportunity to commit adultery. Judges must decide whether or not adultery occurred by the totality of the circumstances. There are specific defenses to adultery, such as being guilty of the same conduct or forgiving the conduct and resuming sexual relations with the adulterous spouse.
In New Jersey, a spouse must be imprisonment for 18 or more consecutive months. The action is not commenced until after the spouse’s release, provided that the parties will not continue cohabitation following imprisonment.
If a spouse is confined for a mental illness for 24 or more consecutive months, the other spouse may file under these grounds.
If one spouse has a habitation to drugs or alcohol for 12 or more consecutive months, the other spouse may file under these grounds.
Abandonment occurs when one spouse voluntarily leaves the other with the intent to desert him or her. In New Jersey, 18 or more consecutive months must pass before filing under these grounds.
In some states, proving fault can be very difficult depending on reconciliation during the separated months. A judge must have a hard job of making sure the evidence against a spouse is authentic and reasonable. Also, proving fault can impact the financial outcome of a divorce. For example, if a judge finds that a spouse commit adultery and used marital assets to supplement a lover’s lifestyle, he or she may consider this fact when determining how to distribute property or how much alimony to award. In some states, a spouse is ineligible for alimony if he or she committed adultery or was proven to be abusive in the relationship.
Questions or comments? Drop a comment down below!
If I lose my job and can no longer afford to pay alimony, am I able to go back to court and try to contest my divorce settlement?
You can absolutely file a motion to try to reopen your divorce case. The recession has played a huge role in Americans losing jobs. Many New Jersey-ians have suffered and consequently filed a motion for a child support and alimony reduction. Post-judgement motions have been pouring in ever since the recession began and has created an enormous problem and issue for the family court system and the people filing. The courts simply do not have enough judges to go around and hear all of the cases and the New Jersey-ians don’t have the financial means or job support to continue to pay their ex-wife/husband.
How do New Jersey courts generally hand motions to reduce alimony and/or child support?
Years ago, it was rare for a judge to consider granting motion(s) to reopen a divorce judgment. These motions were known as change of circumstance(s) applications. Settlements/judgements were considered to be written in stone and unable to ever be changed. Today, as America’s economy spirals downward, the family courts are increasingly inclined to grant more post-judgement motions. Judges now must consider the possibility of a person not being able to find a job or that his or her income has become sharply reduced. Therefore, more judges and family courts are accepting post-judgement motions and re-opening cases to reduce child support and/or alimony.
Do the family court judges have an increased empathy for motions to reduce alimony and/or child support?
Families, of all different incomes, are increasingly chasing for reduced child support and/or alimony. An experienced lawyer will encourage you to try to settle your affairs, as much as possible, without a judge. Court is an expensive route and very time consuming. If you can settle anything outside of court, do so!
To receive a financial reduction, the person seeking relief must file a motion and provide time for their former spouse to respond. The judge can now come to a decision based solely on the legal papers, with or without argument. If there are conflicting facts, the judge may hold a plenary hearing. This legal process can be time and money consuming. More often than not, there are several of these hearings.
In most cases, the success of a post-judgement motion depends on the reliability of the financial information that is disclosed. Furthermore, the family courts will place significant weight on the effort that the applicant has made to find comparable employment or to liquidate assets. There are no statistics on how many post-judgement reductions have been granted. However, there has been more of an increase in granting a reduction than in the past. Many judges sincerely believe that there needs to be a sharing of the pain by both sides.
The process to re-open a divorce case can be time, mind and money consuming for both parties involved. Some of the most difficult cases are from post-judgement cases. Today, many New Jersey-ians paying child support/alimony are trying to re-open their case in hopes to be granted a reduction, even though it has been years since their divorce has been finalized. And still, there is a lot of anger, frustration, and mistrust spewing from the parties!
Filing Requirements and Residency
If you decide to file for divorce in the state of New Jersey, residency requirements must be met for the court to accept the case. If they are not met, the court will no accept the case or it will eventually be dismissed. The requirements are as followed:
Jurisdiction in actions for divorce, either absolute or from bed and board, may be acquired when process is served upon the defendant as prescribed by the rules of the Supreme Court, and
1. When, at the time the cause of action arose, either party was a bona fide resident of this State, and has continued so to be down to the time of the commencement of the action; except that no action for absolute divorce shall be commenced for any cause other than adultery, unless one of the parties has been for the 1 year next preceding the commencement of the action a bona fide resident of this State; or
2. When, since the cause of action arose, either party has become, and for at least 1 year next preceding the commencement of the action has continued to be, a bona fide resident of this State. (New Jersey Statutes – Title 2 A – Chapters: 34-8, 34.10)
Grounds for Filing:
When filing for divorce, you must file a complaint upon which the divorce is being sought for. New Jersey grounds for divorce will be agreed upon by both parties and can sustain, or what the filing spouse chooses to prove to the courts. the following are New Jersey divorce grounds:
-Desertion for 12 or more consecutive months
-Extreme cruelty (mental or physical cruelty which endangers the safety or health of the plaintiff)
-Separation for 18 or more consecutive months
-Addiction or habituation to drugs or alcohol for 12 or more consecutive months
-Institutionalization for mental illness for 24 or more consecutive months
-Imprisonment of the defendant for 18 or more consecutive months; the action is not commenced until after the defendant’s release, provided that the parties will not resume cohabitation following imprisonment
– Deviant sexual conduct voluntarily performed by the defendant without the consent of the plaintiff. (New Jersey Statutes – Title 2 A – Chapters: 34-2
Filing Spouse– Plaintiff. The Plaintiff is the spouse who initiates the filing procedure.
Non-Filing Spouse– Defendant. The defendant is the spouse who does not initiate the filing for divorce, but rather receives them by service.
The two essential documents needed to start and finalize a divorce, in accordance to New Jersey, is Complaint for Divorce and Judgement of Divorce. There are many other documents you will need to file during the proceedings which may include: Cover Letter to Clerk, Case Information Sheet, Summons, Appearance, Financial Statement for Summary Support Actions, and Declaration Under the Uniform Child Custody Jurisdiction Act.
New Jersey is an ‘equitable distribution’ state, which means the marital property shall be divided fairly. The court encourages the parties to reach a settlement on property and and debt issues. If both parties are unable to come to an agreement, it is left to the court to decide. Deciding factors may include, but not limited to:
a. The duration of the marriage;
b. The age and physical and emotional health of the parties;
c. The income or property brought to the marriage by each party;
d. The standard of living established during the marriage;
e. Any written agreement made by the parties before or during the marriage concerning an arrangement of property distribution;
f. The economic circumstances of each party at the time the division of property becomes effective;
g. 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;
h. The contribution by each party to the education, training or earning power of the other;
i. 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;
j. The tax consequences of the proposed distribution to each party;
k. The present value of the property;
l. 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;
m. The debts and liabilities of the parties;
n. 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;
o. The extent to which a party deferred achieving their career goals; and
p. Any other factors which the court may deem relevant.
It shall be a rebuttal presumption that each party made a substantial financial or non financial contribution to the acquisition of income and property while the party was married. (New Jersey Statutes – Title 2 A – Chapters: 34-23)
Alimony is granted to a spouse when one spouse supports the other financially for a temporary or permanent basis. This is decided by the court and varies case-to-case. In all actions brought for divorce, divorce from bed and board, or nullity the court may award one or more of the following types of alimony: permanent alimony; rehabilitative alimony; limited duration alimony or reimbursement alimony to either party. In so doing the court shall 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;
(3) The age, physical and emotional health of the parties;
(4) The standard of living established in the marriage and the likelihood that each party can maintain a reasonably comparable standard of living;
(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 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; and
(13) Any other factors which the court may deem relevant.
When a share of a retirement benefit is treated as an asset for purposes of equitable distribution, the court shall not consider income generated thereafter by that share for purposes of determining alimony. (New Jersey Statutes – Title 2 A – Chapters: 34-23)
When minors are involved, the New Jersey Court takes into consideration the children’s emtional trauma during this time, and lessens it as much as possible. If the parties are unable to come to an agreement on child custody, the courts will establish this.In determining the appropriate sole or joint custody arrangement the court will consider the following factors, but not limited to: 1. the physical, emotional, religious and everyday needs of the children 2. the wishes of the child is deemed to be of sufficient age and maturity. (New Jersey Statutes – Title 2 A – Chapters: 34-23)
New Jersey child support guidelines are based on the Income Shares Model for calculating child support. The monthly support amount determined by applying the guidelines is divided proportionally according to each parent’s income. These two support amounts are then offset to establish which parent will pay the other parent for support of the child. All income is typically verified by examining past W-2’s and child support worksheets are available at the courthouse.
In determining the amount to be paid by a parent for support of the child and the period during which the duty of support is owed, the court in those cases not governed by court rule shall consider, but not be limited to, the following factors:
(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.
The obligation to pay support for a child who has not been emancipated by the court shall not terminate solely on the basis of the child’s age if the child suffers from a severe mental or physical incapacity that causes the child to be financially dependent on a parent. The obligation to pay support for that child shall continue until the court finds that the child is relieved of the incapacity or is no longer financially dependent on the parent. However, in assessing the financial obligation of the parent, the court shall consider, in addition to the factors enumerated in this section, the child’s eligibility for public benefits and services for people with disabilities and may make such orders, including an order involving the creation of a trust, as are necessary to promote the well-being of the child. (New Jersey Statutes – Title 2 A – Chapters: 34-23)
Any questions or comments? Drop a note down below!
Many people have a lot of questions when it comes to getting a divorce. Here are some answers to common questions frequently asked.
What are the grounds for divorce?
Both parties must apply for this relief and can be later converted into a divorce action. In New Jersey, there are both no-fault grounds and fault divorce grounds. Fault grounds include the following:
* Extreme mental and/or physical cruelty
* Constructive desertion
* Alcohol/drug habituation
* Deviant sexual behavior
* Irreconcilable Differences. (parties may be living together when file for divorce if they can prove irreconcilable differences existed for 6 months or more)
* Divorce from bed and board (later can be converted to a final judgment of divorce)
Can I afford a divorce? How much will it cost me?
There are many variables that can cause the cost of the divorce to go up or down. More complex divorces and uncooperative/poorly behaved opposing parties will cost more, as well as child support and custody. Simply look at your case. Do you think the opposing party will be likely to argue most issues? If so, this means more attorney fees.
Do I absolutely need an attorney?
You may research on the internet and rely on word of mouth for information, but chances are the info you receive will be unreliable, incomplete, or/and not the “full picture”. To be 100% sure you are informed of every protection New Jersey state law has to offer, it is wise to retain an attorney.
Does New Jersey grant divorces base on marital fault?
Yes. The grounds for fault divorce include: adultery, desertion, alcohol/drug habituation, imprisonment, and deviant sexual behavior.
Can I get alimony or will I have to provide maintenance to my spouse?
Depending on the case, alimony can be granted to the dependent spouse. New Jersey offers limited duration alimony, permanent and/or rehabilitative alimony, reimbursement alimony, or a combination. If a spouse is unable to get skills or training required to get a job and support themselves, they may be entitled to permanent alimony. Although, if a spouse IS able to obtain training or skills necessary to support themselves, he or she may be granted rehabilitative or reimbursement alimony.
Can I get an annulment?
Annulments are granted and available when the following can be proven:
* Either party has another spouse at the time of marriage
* The parties are blood related and closer than first cousins.
* Male spouse is impotent and the other spouse was unaware prior to marriage.
* Either party lacked the capacity to marry at the time of marriage due to: mental condition, intoxication, and/or drug use.
* Lack of mutual assent to the marriage as a result of duress or fraud.
* The demand for an annulment is made by a spouse who was under the age of 18 during time of marriage AND he/she did not ratify the marriage after turning 18.
When can I file for divorce?
You or the party must reside in New Jersey for at least one year prior to filing. The only exception to this requirement is if adultery is in the grounds for divorce.
When is my case going to be over?
The time length of each case can vary case-to-case. Variations that lengthen the case can include (but not limited to) custody, support, property division, etc. If there are many issues involved and the parties are not cooperative, the case can take some time.
Do I have to go to court?
Yes. There are limited circumstances where it is possible to have permission granted to appear via phone. This is usually granted when you are a certain amount of miles away or hardship exists. However, it is all decided by the court and/or the judge you are assigned.
Attempts to serve my spouse did not work.. What should I do?
You must motion the court for permission to serve by publication. In order to receive permission, you also must prove you put persistent effort in trying to locate the defendant.
At what point during the process is it OK for a spouse to remarry or start dating?
You can start dating at any appropriate time depending on your personal situation and preference. You can only remarry once the divorce is finalized and a final decree has been issued.
What if my spouse does not want the divorce?
You must attempt to prove you have been separated for 18 or more consecutive months or that one of the fault grounds exist.
Do some issues (child support, custody, alimony, and property) have to be decided before the divorce is finalized?
Generally no. Consider divorce, child support and custody to be three separate things. Child support and custody is independent from a divorce and can be modified long after a divorce. In many cases, it is advisable for alimony and property issues to be determined in agreement with the divorce.
How long do I have to live in New Jersey to obtain a divorce?
Typically, one year except when adultery is involved.
After filing for a divorce, am I able to move out of New Jersey?
Yes, as long as you were a resident prior to filing.
What forms do I need to file a divorce?
A Summons, Complaint in Divorce, Affidavit of Verification and Non-Collusion, Affidavit or Certification of Insurance Coverage, Confidential Litigant Information Sheet, and an Affidavit of Notification of Complementary Dispute Resolution Alternatives.
How and where is a divorce complaint filed?
In the appropriate county, the Complaint is filed with the clerk of court.
How do I serve the divorce complaint to my spouse?
You can serve your spouse personally via the sheriff with both the Summons and Complaint. If this is unsuccessful, the plaintiff’s attorney or any uninvolved party (over the age of 18) may attempt service. If personal service is not successful after persistent attempts, service certified by mail is permissible.
How is a divorce granted? Will I have to go to court?
New Jersey requires the moving party to go to court in an uncontested divorce to testify on the record regarding the information presented in their complaint. If the defendant has filed an answer, he/she will also have to appear in court.
How do I prove fault for a divorce?
You will provide all present evidence and possible witnesses if a hearing on the grounds alleged for divorce is held.
Can a couple become legally married by living together as man and wife under the states laws (common law marriage)?
New Jersey does not recognize common law marriage.
Hope this can help resolve some confusion you might have. Feel free to leave comments or questions below!