Under NJ divorce laws, parties must file for a dissolution of marriage if they want a divorce. However, parties who are hesitant about the finality of divorce can have a divorce from bed and board (which is similar to a ‘legal separation’ that other states have). In these divorces, spouses end their financial relationship, so any property acquired after this is finalized is considered separate property and is not subject to division. However, they still remain married to each other. Parties who do not wish to divorce because of their religion may find to be the best option in lieu of divorce.
In New Jersey, there are two primary kinds of divorces – No-Fault or Fault-Based divorces. No-fault divorces are often easier because there is no need to prove any particular grounds or fault for the breakdown of the marriage. Rather, someone only needs to show that the parties have irreconcilable differences that have led to the breakdown of the marriage for at least six months. Plus, there is no reasonable expectation of reconciliation between the parties, so the marriage should be dissolved.
On the other hand, a fault-based divorce requires someone to demonstrate that the other spouse is to blame for the marriage dissolving. NJ divorce laws list out specific grounds for a fault-based divorce, including adultery, desertion, extreme cruelty, or even imprisonment of a spouse for a certain period of time.
No matter what kind of divorce you decide to file, NJ divorce laws are clear about the residency and jurisdictional requirements for dissolving your marriage. At least one spouse must be a bona fide resident of New Jersey for at least twelve months before a divorce action can be filed (unless here is adultery present). The suit must also be filed in either the county in which the spouse is filing for divorce primarily lives when the cause of action arose or if not, the county where the other spouse lives. If neither spouse lived in New Jersey when the cause of action happened, then it will be where the filing spouse lives when they file suit, as long as they are living in New Jersey.
Before the divorce can be finalized in court, some parties may want temporary relief or a motion pendente lite. Usually, these motions will allow the parties to maintain the status quo. In other words, it will require both parties to continue to support their children, each other, and not diminish their estates in any significant way. There are multiple types of relief which can be obtained through a motion pendente lite: child and spousal support, custody, parenting time, attorney’s fees, possession of the marital residence, and ordering payment of various shared bills, among other things. If you want to file a motion for temporary relief, you should do so as soon as possible. NJ divorce laws require the motions to be filed at least 24 days prior to the hearing date. If you can show that there will be irreparable harm without a court’s intervention, then you can file an Order to Show Cause. Once the divorce is finalized into a final judgment, then any temporary orders will end unless the terms have been incorporated into the final judgment. One thing that might be affected after obtaining a temporary order is the amount of alimony a party might be entitled to receive once the divorce is final.
Child and spousal support can be a contentious aspect of any divorce. Alimony, or spousal support, can be paid in addition to child support. The court will consider fourteen factors in determining the type of alimony awarded and the amount. These include whether the party needs the payment or can afford to pay, how long the marriage lasted, how old each party is, their physical health, and the standard of living the parties were used to when they were married. Of course, the ability of each party to support him or herself, any educational requirements to get back into the job market, and disabilities which may inhibit them from doing so will also be considered by the court.
Child support has fewer grey areas in that there are basic mathematical guidelines for the courts to use rather than a list of factors. The court presumes that the calculations based on the guidelines are in the best interest of the child, although if a party can show a reason why the guideline amount would be inappropriate, the presumption will be overcome. Additionally, if the paying party has other children from another relationship they must support, then their obligation will likely be lowered so as not to deprive the other child. They will also receive a reduction for shared custody if they have the child at least 28 percent of the time (or over 105 overnight periods).
As well as support matters, the two primary issues to decide in any divorce case with children will be custody and the division of property. For custody, there are two basic concepts to understand: legal custody and physical custody. The former determines who has the power to make the major decisions for a child, while the latter deals with which parent the child will live primarily with. With legal custody, there is joint or sole custody. Joint custody is the most common type, and it requires parents to work together in making decisions for their child. Sole custody means only one parent gets to make these decisions, usually because the other parent has a history of drug abuse or child abuse. With visitation, in most cases, the child will live with one parent most of the time but will get liberal visitation with the other parent, usually Friday through Sunday, and one or two visits during the week.
Regarding property division, New Jersey uses equitable distribution. This means that any assets will be divided fairly – which is not always equal. Only marital property, or property that the parties earned or gained while they were married, can be divided. Non-martial property cannot be. This means property from before the marriage, or anything inherited or gifted by a third party. That is why it is crucial to accurately characterize the nature of the property in question. Once the property is properly identified, the court will go down a list of statutory factors in deciding who should be awarded each asset (or how much of an asset). The list includes the length of the marital relationship, how old and how healthy each spouse is, agreements, like prenuptial or antenuptial agreements, their financial state, property and income brought into the marriage by each party, and what they contributed to the relationship and the marital property, among other things. Importantly, the court considers a spouse who stays at home to raise children and preserve the house as equally important as a spouse who earns money outside the home.
Once the divorce is finalized, there are miscellaneous issues for spouses to consider, such as a change of name and health insurance. In most cases, name changes are typically approved unless it is done to avoid creditors or prosecution. A court order will legally change your name, at which point you can bring a copy to the appropriate agencies, like the Social Security Administration, to change all your legal paperwork accordingly.
For health insurance, spouses will not be able to continue being covered by the other party’s insurance once the divorce is finalized. The easiest way to be covered is for the non-insured spouse to seek coverage through their employment, if possible. If not, there are two other options they can consider. First, COBRA (Consolidated Omnibus Budget Reconciliation Act) which allows divorced spouses and children to be covered when coverage would otherwise be lost. This maintains the status quo of health insurance, but it is generally more expensive than other plans. It is also designed to be of temporary duration – usually around 36 months. Or, the non-covered spouse can seek their own plan through the Affordable Care Act, which would allow them to purchase an individual policy. No matter what, these options will likely be more expensive than a shared family plan, so you should consider that when seeking out a final judgment to your divorce.
If you want to know more about NJ divorce laws, contact the law offices of Peter Van Aulen for a free consultation today, at 201-845-7400.