Getting a divorce doesn’t have to tear your family apart.
Whether your family navigates the turbulent waters of divorce well will depend upon your ability to discuss the issues with your spouse and reach an agreement between the two of you as to how your life will continue after you are no longer legally a married couple.
There are mediation services available to you to help you with these negotiations. During mediation, the mediator does not represent one or the other of you, but assists in helping the parties come up with an agreement they both can live with. You will each be obligated to pay the mediator for her time, but if mediation effectively resolves the issues in dispute, it will save time and money for both parties. Mediation depends on the full cooperation and active participation of both of you. Even when mediation is a success and a Property Settlement Agreement is reached, you are still required to process the divorce complaint and obtain a judgment of divorce from the court.
Understanding your rights before you begin this process should help you through the issues.
Current law makes it relatively easy to end a marriage. In order to process a divorce, New Jersey requires no more than your statement that the marriage is broken and cannot be repaired. It is no longer mandatory to plead bad conduct or provide other grounds to justify a divorce, although you can opt to argue instances of bad conduct instead of irreconcilable differences, where it may have a legal affect on the proceedings. Generally, however, a party seeking a divorce needs only prove that you have had irreconcilable differences for at least 6 months to meet the legal grounds for a divorce.
The most difficult aspect of a divorce is dividing the life that you have created together, dividing the assets and the debts acquired during the marriage of the division of your assets and debts, what the court calls “equitable distribution” of property. Equitable distribution refers to the authority of the Court to fairly distribute the assets which were acquired during your marriage.
The only property which is basically exempt from equitable distribution would be those assets acquired by way of gift or inheritance and assets acquired prior to the date of your marriage which were kept in the separate name of the spouse who received the gift or inheritance.
Of the assets subject to equitable distribution, the court will start with the presumption that the marital assets and debts should be divided equally between the two of you. The Court may adjust this division based upon a number of considerations such as:
- The duration of 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 (a prenuptial agreement);
- The economic circumstances of each party at the time of 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 the 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;
- The contribution by each party to the education, training, or earning power of the other;
- 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;
- 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 an unemancipated 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; and
- Any other factors which the Court may deem relevant.
Alimony or spousal support can be awarded in varying degrees. There is Rehabilitative alimony (short term alimony designed specifically to help an uneducated or unemployed spouse rehabilitate themselves to earn), Term alimony (alimony for a specific number of years), and Permanent alimony (alimony which continues until one of the events enumerated in the law occurs (i.e., death, remarriage, etc.). A marriage which has lasted at least one year will qualify for a consideration of permanent alimony by the Court, but unless the marriage is at least 14 years it is unlikely (absent unusual facts) that permanent alimony would be considered.
Alimony award is discretionary, or in other words, up to the decision of the judge. A Court awarding alimony considers the following factors:
- The actual need and ability of the parties to pay;
- The duration of the marriage;
- The age, physical and emotional health of the parties;
- The standard of living established in the marriage and the likelihood that each party can maintain a reasonable comparable standard of living;
- The earning capacities, educational levels, vocational skills, and employability of the parties;
- The length of absence from the job market and custodial responsibilities for children of the party seeking maintenance;
- The time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, and the opportunity for future acquisitions of capital assets and income;
- 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;
- The equitable distribution of property ordered and any payout on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair; and
- Any other factors which the Court may deem relevant.
Traditionally, the highest wage earner between the two spouses would have the obligation of support of the other.
If you can discuss the custody of the children and reach an agreement with your spouse, the Court will generally follow your wishes. If you cannot reach an agreement the custody of the children will be determined by the court in an effort to effectuate what the Judge finds is in the best interest of the children. If the matter is left to the Court to decide, the following factors will be considered in making a determination:
- The parents’ ability to agree, communicate, and cooperate in matters relating to the child.
- The parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse.
- The interaction and relationship of the child with parents and siblings.
- The history of domestic violence, if any; the safety of the child and the safety of either parent from physical abuse by the other parent.
- The preference of the child (when of sufficient age and capacity to reason so as to form an intelligent decision.)
- The needs of the child.
- The stability of the home environment offered.
- The quality and continuity of the child’s education.
- The fitness of the parents.
- The geographical proximity of the parents’ homes.
- The extent and quality of the time spent with the child prior to or subsequent to the separation.
- The parents’ employment responsibilities.
- The age and number of the children.
Shared/split (50%/50%) custody is increasing in popularity. Where parties share joint custody of the child, one parent will be designated the Parent of Primary Residence (PPR) and the other will be designated the Parent of Alternate Residence (PAR). A parenting plan that is in the best interest of the child will incorporate regular time with both parents, and will include provisions for summer months, holidays, vacations and family obligations.
Child support. Monetary support will be paid by the parent who is not the parent of primary residence for an unemancipated child. In New Jersey, child support will continue until the child graduates from college unless an emancipation event occurs. Custody and overnight parenting time play significant roles in the awarding of child support. Child support is not based solely on income. There are numerous factors, figures, and expenses that go into calculating support using the New Jersey Child Support Guidelines. The guidelines use the same formula to calculate support state-wide so that no matter which court you are in, you can be assured that you are receiving fair and adequate child support based on your particular set of circumstances. An award based on the guidelines is assumed to be the correct amount of child support unless a party proves to the court that circumstances exist that make a guidelines-based award inappropriate in a specific case. An adjustment will be granted for good cause. The premise of these guidelines is that (1) child support is a continuous duty of both parents, (2) children are entitled to share in the current income of both parents, and (3) children should not be the economic victims of divorce or out-of-wedlock birth.