Category: divorce laws

NJ No-Fault Divorces

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.

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What is the difference between Fault and No-Fault Divorce?

 

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.

No-Fault Grounds
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).

Fault Grounds
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

Adultery
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.

Incarceration
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.

Institutionalization
If a spouse is confined for a mental illness for 24 or more consecutive months, the other spouse may file under these grounds.

Substance Abuse
If one spouse has a habitation to drugs or alcohol for 12 or more consecutive months, the other spouse may file under these grounds.

Desertion
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.

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New Jersey Divorce Laws

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:
-Adultery
-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.

Primary Documents
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.

 
Property Distribution
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)

 
Spousal Support
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)

Child Custody
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)

Child Support
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)

 

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