FAQs: Divorce in NJ Part III

I am in the Military and Move Frequently. Can I Get a Divorce in NJ?

If you or your spouse are stationed in New Jersey or are residents here, then you can certainly file for divorce while you are here. Luckily, New Jersey courts are fairly flexible in the residency requirements when it comes to active military members.

How Will my Military Pension Get Divided in a Divorce in NJ?

Dividing up pensions and retirement for military members can be complex. The rules are strict. It is important that you find a lawyer who has experience in dealing with service members during a divorce. Under the Uniformed Services Former Spouses Protection Act, states are allowed to divide up military retirement, but how they do so is within the discretion of each state. There is a misconception that parties must be married for at least ten years before they can receive a portion of their spouse's military pension - this is not true. Marriage and service time is important only when determining if the payments can be made directly from the military. Otherwise, the pension can be subject to division at any point during the marriage. There must be ten years of marriage which overlap with ten years of military service to receive their share directly from the Defense Finance and Accounting Service (DFAS). Otherwise, the retiree will be ordered to pay a percentage of what they receive directly to their spouse.

Will my Spouse be Entitled to my Military Disability if We Divorce in NJ?

The military will not allow disability payments to be distributed to a spouse in the event of a divorce; however, New Jersey courts will be able to order a distribution. Similar to the pension payments, New Jersey courts can take a service member's disability payments into account and order them to pay a percentage of that directly to their former spouse. Therefore, it will not matter if a military member tries to convert their pension into disability - it can still be distributed.

What if I am in the Military and I Will Get Deployed Soon?

If your spouse is about to file for divorce in NJ and you are out of the country on deployment, you can ask for the lawsuit to get put on hold under the Service Member's Relief Act. The first period of delay is up to 90 days, but the time can be extended if you request the court and show a reason that will justify continuous stays. However, if child support is involved, sometimes the courts in New Jersey will not agree to give you a stay. If the court has a copy of your tax return and current LES, then they can calculate child support without your presence. Therefore, you should always consider hiring an attorney to represent you even if you are deployed, in the event the court decides not to institute a stay on the litigation.

What if my Spouse and I Have Lost Touch and I Cannot Locate Them?

Because the other spouse is entitled to notice of the lawsuit so that they may put on a defense, if you are unable to locate them, it can delay your divorce. However, you will still be entitled to get a divorce in NJ. You can serve them in an alternative way, but you have to show the court that you've made a good faith effort to locate them, but ultimately failed. Sometimes, it is easier to hire a private investigator, although it is not always financially possible. You will have to show the court that, at a minimum, you:

  • contacted your spouse's friends, former employers, and family;
  • Searched the division of motor vehicles for their name;
  • Searched branches of the U.S. military;
  • Looked up their name in the voter registration office where they last lived;
  • Searched online, including the white pages, Facebook, and other social media; and
  • Did a skip trace search.

Then, you have to swear to an affidavit that you've done the above, which will be filed with the court. At that point, the court should allow you to publish a notice in the newspaper, alerting them to the divorce.

Will I Have to Leave my House During the Divorce?

After you file for divorce, but before it is finalized, it is often a good idea to try to stay in the marital home if at all possible. When getting a divorce in NJ, most courts will usually not force one spouse to leave, unless there is evidence of domestic violence. If custody is in dispute, then it is often a better idea to try to stay in the home so that you can continue to have daily interactions with the children - something very persuasive to a judge in making custody determinations. Additionally, you will likely continue to have access to the financial documents and records that will be required in dividing up your assets. It is more cost-effective for the parties to continue to pay for one household as well, ensuring they can begin budgeting for their lives apart.

What are Some of the Downsides to Leaving my House if I Want to?

The biggest downside, apart from the ones listed above, is that once you leave, you will not be able to come and go whenever you like. Instead, courts will usually award the exclusive use of the property to the party who is remaining in the home. Additionally, the courts will very often award the home during the final division to the spouse who has lived there throughout the case, so long as they can afford it. Therefore, before you decide to leave, you should speak to an attorney about the merits and disadvantages of doing so. Of course, if living with your spouse in the same home is impossible and stressful for the children, it might be the best option for both parties if one parent decides to move out.

Further, see Frequently Asked Questions About a Divorce in NJ - Part 1, Frequently Asked Questions About a Divorce in NJ - Part 2, Frequently Asked Questions About a Divorce in NJ - Part 4, and Frequently Asked Questions About a Divorce in NJ - Part 5. If you need clarification on what you can expect during a divorce in NJ, contact Peter Van Aulen for a free, initial consultation today at 201-845-7400.

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