FAQs: Divorce

Clients often come into their lawyer's office with a long list of questions if they are considering divorce. There are so many moving parts with a divorce in NJ, even for the simplest matters, that it is understandable for people to feel overwhelmed with the process. These articles should give you some clarity and peace of mind about what to expect when you get a divorce in NJ.

What are the First Steps I Should Take if I'm Getting a Divorce in NJ?

Perhaps it sounds biased, but you should always speak with a qualified family law attorney in your jurisdiction. Getting information online is helpful and can get you started, but every divorce case is different. You need specific advice that is relevant to your circumstance. That said, you should start saving financial documents (tax returns, pay stubs, mortgage statements, bank statements, etc.) because these will be important to your case. Do not make any big purchases or sales until you have gotten advice from a qualified family lawyer. To get an idea of what questions you should ask in your consultation.

What if I Decide not to Hire an Attorney - How do I Start the Process?

If you want to represent yourself in a divorce in NJ, you will need to familiarize yourself with the papers, terminology, and process that goes into this kind of lawsuit. If you start the lawsuit, then you will be called the plaintiff, and your spouse will be referred to as the respondent. You must file a complaint for divorce with your local county clerk's office. Specific information, including the reasons why you want to divorce, must be included. You'll also need to provide a Confidential Litigation Information Sheet, and a Certificate of Insurance Coverage. Early on in the case, you will need to make sure you fill out and file the Case Information Statement. Although they cannot give you legal advice, the clerk's office is always a good resource for you to consult if you have any questions about the logistics of filing these documents.

What are the Grounds for a Divorce in NJ?

First, you must understand the difference between a 'fault' and 'no-fault' divorce here in New Jersey. A fault divorce requires you to assert certain reasons why the marriage failed. You will have to provide proof of this occurring to the judge. A no-fault divorce is an easy way to say that the parties simply grew apart - that no one is necessarily to blame for the breakdown of the relationship. If you decide to claim a fault-based ground in your divorce, you need to prove one of the following:

  • that your spouse had an extramarital relationship
  • that you were intentionally abandoned by your spouse for at least 1 year
  • that your spouse was cruel or abusive to you to the point that you could no longer live together, and the last instance of abuse happened within three months before you filed
  • that you and your spouse have lived in different homes for at least a year and a half and know you will not get back together,
  • consistent abuse of narcotics or alcohol if they've shown addiction for 12 months or more;
  • mental illness to the point they had to be institutionalized continuously for at least 2 years;
  • imprisonment of your spouse with a sentence exceeding 18 months; or
  • your spouse enjoyed deviant sexual behavior voluntarily without your consent.
What are the Expected Timelines for a Divorce in NJ?

First, you need to ensure that you have been in the state of New Jersey long enough to file the lawsuit. Before you can file in New Jersey, at least one of the spouses has to have lived in the state as a bona fide resident for at least 12 months, unless you plead adultery. Find out if you meet the residency requirements for a divorce in NJ. If you have met this residency requirement, then you can start the process of divorce. However, if you and the other party cannot come to an agreement on major issues, then chances are your divorce will be drawn out for a significant period. You will probably need to exchange discovery, hire attorneys and expert witnesses, and attempt mediation before it's all said and done.

What is Discovery?

Discovery is the method where the parties exchange documents and info about the issues in the case. It is the best opportunity for you to obtain full disclosure of financial circumstances, the other spouse's lifestyle, issues with custody and determine what evidence they have to support their own claims or defend against yours. There are four main kinds of discovery. Depositions are oral testimonies taken outside a courtroom. The party is under oath and is subjected to questions from the opposing party. Interrogatories are written questions. Again, the other party must answer under oath, but they have the opportunity to more thoughtfully respond. A notice to produce is concerned with documents. Parties can ask for tax returns, business records, mortgage statements, photos, recordings - basically anything that would be considered relevant or could result in the discovery of evidence. Finally, a request for admissions is a request for one party to admit or deny a list of relevant facts. It's a good idea to hire a lawyer for this process - they can offer objections and determine what might be privileged to better protect your interests. There are also significant procedural rules and timelines with discovery that you should be aware of. If you want more information on discovery in NJ,

Also, see Frequently Asked Questions About a Divorce in NJ - Part 2, Frequently Asked Questions About a Divorce in NJ - Part 3, Frequently Asked Questions About a Divorce in NJ - Part 4, and Frequently Asked Questions About a Divorce in NJ - Part 5. Peter Van Aulen is a qualified family law attorney who is prepared to answer all of your questions about getting a divorce in NJ. Get in touch with him today for a free, initial consultation at 201-845-7400.

Can I Get a Legal Separation in NJ?

Technically speaking, no. There is no legal separation in New Jersey. However, there is something called a divorce from bed and board (b&b) which is conceptually similar. It does not break the bonds of marriage but dictates the use and management of property and even custody as applicable. If you think you and the other party might still reconcile, you have religious objections to divorce, or even if you need to continue to receive healthcare benefits, getting a divorce from b&b might be a suitable alternative to getting a divorce in NJ.

How do I Get a Divorce From bed and Board?

If you and the other party agree, and you would otherwise be able to show grounds for a divorce, then you will be entitled to a divorce from b&b. Once this is granted, then any interest you have in the property acquired by your spouse afterward is gone. So, if the other party wins the lottery the day after you get a divorce from bed and board, you have zero interest in any part of that property. It also affects inheritance. Once you get a judgment for this suit, then if your spouse later excludes you in their will, then you have no standing to make a claim on their estate. Otherwise, you as their spouse would likely have some claim to it. Therefore, there are some potential downsides to getting a divorce from b&b instead of a full divorce in NJ that you should explore with a qualified attorney.

Are There any Other Alternatives to Getting a Divorce in NJ?

You and your spouse might consider getting a separation agreement. It is less formal than either a divorce or divorce from bed and board, but it still offers some protection. The agreement lists out the party's rights to, support, child custody and property. Once the parties agree on these issues, a lawyer should draft up the terms and have each party execute the document. The agreement is not enforceable by a court, but it is considered to be a contractual agreement. Therefore, if one party decides not to uphold their part of the bargain, the other party can use them in court for breach of contract.

What is the Basic Process to Get a Divorce in NJ?

Once the petitioner files their complaint for divorce, they must serve their spouse personally. Once the defendant has received notice of the lawsuit, they have 35 days to answer the complaint. They are also entitled to file their own counterclaim if there are arguments they wish to make. Don't forget the other important documents that must be filed, like the confidential litigant information sheet and the CDR certification. If there are children involved in a divorce in NJ, then you must attend a mandatory education class. There will then be a case management conference set by the court, where discovery periods, evaluations and psychological exams might be set. Sometimes there are attempts to settle or mediate along the way. Finally, if the parties do not settle, the court will set a trial date.

How can I Get Temporary Support in a Divorce in NJ?

Often, couples can sort out who pays the interim bills for the marital residence without any problems. Other times, the spouse will refuse to help the other and cut them off financially. If this happens, then you need to file a 'Pendente Lite Motion for Relief' requesting support. This simply means 'temporary support.' Once filed, a court can grant you child support, spousal support and even determine temporary issues of child custody and parenting time. It is also the opportunity for the court to order the parties to pay certain bills, like the mortgage, utilities, and insurance, enjoin or prevent the parties from wasting or selling the community assets, and can even appoint experts to determine the value of some property if there are disputes. You should file a motion as soon as possible because the motion must be filed at least 24 days before the hearing, unless it is filed as an Order to Show Cause if there is a showing of immediate irreparable harm.

What is the Purpose of Child Support Guidelines in New Jersey?

The purpose of child support in New Jersey is to ensure that children are not forced into a life of poverty simply because their parents decided to separate. They should have the same opportunities as families who have not split up but have similar financial circumstances. The legislation created guidelines for courts to rely on in reaching this goal.

How is Child Support Calculated in New Jersey?

First, Courts will consider both parents' gross income, which includes salary, tips, bonuses, alimony, rental income, etc. If the federal government can tax it, it is considered income for child support. Then, the court deducts Medicare contributions, child support for other children, taxes and union dues. The court also looks at the amount of parenting time each parent has - if the NCP has their child overnight for more than 28 percent of the year, they will usually pay less child support. The age of a child is also a consideration, as it is generally more expensive to raise a teenager than an infant. Of course, there are deviations from the guidelines which are allowed, and things like private school or college tuition are other considerations the court has to look at.

For more information see Frequently Asked Questions About a Divorce in NJ - Part 1, Frequently Asked Questions About a Divorce in NJ - Part 3, Frequently Asked Questions About a Divorce in NJ - Part 4, and Frequently Asked Questions About a Divorce in NJ - Part 5. If you have questions about getting a divorce in NJ, call Peter Van Aulen for a free consultation today. Call us at 201-845-7400.

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.

What Will Happen to my Health Insurance Coverage if I Get a Divorce in NJ?

Non-spouses cannot be covered by health insurance plans received through an employer - no matter how friendly the spouses remain after the lawsuit. However, there are a few options to keep some coverage on the spouse when the marriage is dissolved. First, you can get coverage through the Consolidated Omnibus Budget Reconciliation Act (COBRA), get coverage through your own employer, if available, or purchase your own private plan. All of these are unfortunately going to be more expensive than a family plan, but you might be able to get some reimbursement or spousal support to help defray the costs of this - at least at first.

What is COBRA?

COBRA is a federal government plan which allows former spouses to receive health insurance when it otherwise would not be available. This can be a great option, especially in a pinch. However, COBRA is significantly more expensive, and it is meant to be a temporary measure. Therefore, COBRA lasts only up to 36 months, so you will eventually need to find your own health care coverage after the divorce.

What Happens to my Life Insurance After a New Jersey Divorce?

First, if you have not gotten a life insurance plan while you were married, then you need to be prepared to take one out if you get a divorce in NJ. If you are ordered to pay child or spousal support, the court might require you to get a plan. This is so that your spouse will not have to sue your estate in the event of your death. The plan the paying spouse must get should be big enough to cover the whole amount paid over the period of time as ordered or agreed to. So, for example, if one spouse is ordered to pay $500.00 each month for five years, then they will need to have a life insurance policy that will be worth at least $30,000.00 with the ex-spouse as the beneficiary.

What if my Spouse is Already the Beneficiary During the Marriage and I Want Them off Once We Finalize the Divorce in NJ?

That depends. New Jersey courts rely on a 'revocation upon divorce' law to decide. Under any contractual obligation, if one spouse has named another as a beneficiary, then this is automatically revoked upon divorce. Therefore, you must keep in this in mind when going through the process of divorce, particularly if you and your spouse are older, or in bad health.

What Should I Expect Upon the Death of my Spouse During or After a Divorce in NJ?

There are so many variables that can affect your financial life if your spouse dies - both during the litigation and after. Alimony payments will usually cease if either spouse dies. But, if the paying spouse was behind on their payments, then they might be entitled to make a claim against the deceased spouse's estate. In contrast, child support will not end upon the paying spouse's death, but rather will continue to be paid by the estate. Crucially, you should seek out the advice of a probate attorney once you divorce so that you can amend your wills. In New Jersey, the surviving current spouse can receive an elective share of a third of their spouse's estate - even if they are not included in the will. However, this share will not be given to the spouse if they were not living together, or had a divorce from bed and board - or if they were divorced.

If I am at Retirement age, are There any Special Considerations I Should Make When Contemplating a Divorce in NJ?

Usually, yes. These divorces will usually involve a couple who have been married for several decades. This means they have a sizable marital estate, with most of their wealth tied up in real property and retirement. Both of these assets are tricky to value and divide, and any financial hit a party takes will be more difficult to recoup. Parties in a 'grey divorce' have less time to make up any losses. This is imperative to understand when dividing up retirement, especially if one spouse was the primary breadwinner and the other stayed home to take care of their children. You are also entitled to each other's Social Security benefits if they are eligible to receive it. Given the nature of going through a grey divorce in NJ, you should seek out the advice of an attorney who has experience with large estates.

Is Mediation Required if I'm Getting a Divorce in NJ?

The court system is designed to encourage mediation and settlement out of court whenever possible. Usually, judges will prefer to divorce a couple who has voluntarily attempted to resolve their issues. In other jurisdictions, mediation will be required. Court Rule 1:40-5 requires parties who have a contested custody or parenting time matter must attend mediation. Luckily this kind of mediation is free. If parties have not resolved certain financial issues, then they have to attend 'economic' mediation. Rule 5 requires parties to attend a New Jersey Early Settlement Panel (ESP), which is another method of resolving disputes before heading to trial. Mediation or alternative dispute resolution are both excellent options for parties who are close to agreeing, or who do not want to spend the time and money in preparing for a long trial.

See also 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 3, and Frequently Asked Questions About a Divorce in NJ - Part 5. If you have questions about what to expect if you go through a divorce in NJ, contact the law offices of Peter Van Aulen today for a free initial consultation at 201-845-7400.

Do You Think I Should Get a Divorce?

Only you will ever be able to answer this question. However, in my decades of practice, I have found that there are certain patterns that often lead to someone getting a divorce in NJ. If your spouse has committed infidelity (especially multiple times), that sort of indicates a lack of basic respect for you. Once the lack of respect leaves a marriage, it is difficult to reclaim. Couples who do not respect each other often get divorced. Similarly, if the parents are unable to work together and compromise, this can be toxic. Imagine trying to co-parent with someone with whom you fundamentally disagree, and who refuses to meet you in the middle. This leads to a blockade in communication and trust, rendering a marriage irrelevant. If one spouse is unwilling to make the relationship work, then it might be time to consider moving on.

How Much Will a Divorce in NJ Cost Me?

If you decide to go it alone, you will certainly save attorney's fees. However, there are unseen costs associated with filing a divorce pro se. If you have a large estate, major contested custody issues, or cannot agree on anything, you will probably save yourself time by hiring a lawyer. Hiring a lawyer will also ensure that you have filed everything right and that your divorce decree is enforceable and correct. Filing a complaint in New Jersey will cost you around $250.00, no matter if you are representing yourself or with a lawyer. You'll also pay at least $25.00 for a parenting class if you have children. If you decide to invest in a lawyer's services, you can expect to pay between $100-$400/hour, depending on the jurisdiction and that lawyer's experience. Most will request a retainer up front, which can range between $2,500.00 and $10,000.00.

How can I Save Money if I Decide to Hire a Lawyer for My Divorce in NJ?

First, being reasonable and willing to negotiate with your spouse can go a long way in reducing lawyer's fees. The more a couple fights, the longer and harder a lawyer must work for you. If there are highly contested issues, then you might need to hire third-party experts, like property appraisers, child psychologists, or even lawyers who will represent the best interest of the children. If you want your divorce to be relatively inexpensive and stress-free, come to the table with an open mind and be willing to negotiate. Additionally, making sure you pick the right lawyer - not necessarily the cheapest - will ensure you mitigate the costs of getting a divorce in NJ.

How do I Choose a New Jersey Divorce Lawyer?

First, think about the kind of experience you want your lawyer to have. You should find someone who practices family law. They will know the procedures, complex legal statutes, and sometimes can even get an idea of how your judge will rule on a matter. You want someone who is experienced, even if someone fresh out of law school might be a better deal. Remember, you are dealing with your money and your children - two of the most important things in someone's life. Of course, if you recognize your attorney's name through their work in the community or publications, this is another great sign you've got a competent professional. Any special credentials, like certifications from the New Jersey Supreme Court, can help you know that the lawyer is recognized in their own community for excellence.

How can I Make Getting a Divorce in NJ Easier?

First, hiring the best lawyer to reach your goals will go a long way to ease your mind. There are other things you can do to ensure you stay healthy and sane while getting a divorce. Don't be afraid to talk it out, or even get professional help. There are hundreds of therapists who have experience in helping individuals deal with a failed marriage and the divorce process. They will help you find tools and coping mechanisms to ensure you can move forward successfully and not get stuck obsessing over your ex. Getting a divorce is a great time to focus on you and your own future. If you've had interests that have maybe been pushed to the side, now's a great time to start exploring! Maybe you've always wanted to visit a foreign country or take a language class. Take time to pursue your own interests and give yourself something to look forward to that is just about you. Think of it as a respite from the stresses of life and the divorce.

Is There Anything I Need to do Once the Divorce Paperwork is Signed and Finalized?

Unfortunately, yes - the process does not end just with the final decree and clap of a gavel when getting a divorce in NJ. First, make sure your property is actually divided. Stay on top of your lawyer to ensure that any closing documents, like deeds transferring property, or qualified domestic relations order dividing up retirement, are actually drafted or properly recorded in their respective agencies. Next, decide if you need to change your will and beneficiaries to reflect your new relationship status. Make sure all your insurance companies know about your divorce - including your health insurance, car insurance, and even homeowner's insurance. Often, you will find that you're paying to ensure things that aren't even in your possession any longer. Make sure everything is up to date with them. Make sure you've changed any joint accounts to ensure the other party cannot gain access to your bank accounts. The best thing to do is close any joint accounts and open up a brand new one in your name only. Finally, start preparing for the future. Think about speaking to some personal financial advisors to take stock of your new financial situation and help you to invest and save.

If you want to read more information on divorce, 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 3, and Frequently Asked Questions About a Divorce in NJ - Part 4. If you have more questions about getting a divorce in NJ, contact the law offices of Peter Van Aulen today at 201-845-7400 for a free, initial consultation.

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