Filing for Divorce
It’s always recommended that you retain a lawyer to represent you with filing a divorce. Therefore, the first step in how to file a divorce in NJ is to find a good lawyer. A Divorce proceeding is one of the most consequential events one can go through. It can affect a person’s life and their children indefinitely. That is why picking the right lawyer is vital.
It is important to understand the terminology used in a divorce proceeding. A divorce and a dissolution of marriage mean the exact same thing. In New Jersey you file what’s called a complaint for divorce. The spouse who files this complaint is called the plaintiff, and the other party will be the defendant.
Another aspect to understand when learning how to file a divorce in NJ is the residency requirement. One spouse must be a resident of New Jersey for at least 12 months in a row before a divorce can be filed. There is an exception to this rule – if the cause of divorce is adultery, and it happened in New Jersey, then someone has to be a resident, without any time restriction. You might also qualify as a resident under different military standards if you or your spouse are active service members.
Next, you will also need to determine the grounds for your divorce. The kind of divorce you file could also affect the timing requirements. For example, if you and your spouse have simply grown apart, a no-fault divorce is the way to go, where there are irreconcilable differences that have made the marriage break down for at least six months, or the parties have already been living separate and apart for at least 18 months, without any chance of reconciliation in both instances. It is important to note that a no-fault divorce does not require a separation for 6 months, but requires that irreconcilable differences existed for at least six months prior to filing the complaint.
The other option is to file a complaint for divorce based on fault. However, doing so in most cases, does not affect the award of alimony, child support or the division of assets. Some of the most common fault grounds are adultery, willful desertion or abandonment for a year, extreme cruelty (like abuse), or alcohol or drug addiction. While these might be a factor in many divorces, most couples choose to seek a no-fault divorce because it leads to a smoother case.
Next step regarding how to file a divorce in NJ, is filing a complaint for divorce, insurance affidavit and confidential litigation sheet with the required fees. After the complaint is stamped filed, the complaint must be served on the defendant. This is usually done by personal service by either a professional process server or a sheriff’s office. Once the defendant is served, he or she will have 35 days to respond. The defendant can file an appearance, an answer, or a counterclaim.
In about 98% of divorce cases, the parties settle without a trial. If the parties settle they enter into a Marital Settlement Agreement which lays out the division of property and any custody or support matters between the party. Then the agreement becomes part of the final Judgement of Divorce and it will be an enforceable court order.
If the situation is more contentious and a settlement cannot be reached, then there will be a trial. The judge will decide the issues of division of property, child custody, child support and alimony. When it comes to property, the judge has several factors they must consider in determining a fair and equitable (but not necessarily equal) division of property. Things like the length of the marriage, ages of the parties, income, and standard of living enjoyed throughout the marriage, written agreements between the parties, and debts and liabilities, among other things, will all impact on how property is divided.
Similarly, a judge will only award alimony after considering multiple factors. The key question is generally whether one party needs alimony, and whether the other party has the ability to meet this need financially. Other considerations are at play, and these will affect not only whether alimony is awarded at all, but also the amount and duration of alimony that is ordered.
When it comes to custody of the children the court will determine what is in the best interest of the child. The court will examine the ability of the parties to communicate and cooperate regarding the child, other family members (including siblings), any evidence of violence or abuse, and even sometimes the preference of the child as to custody if they are old enough and mature enough to voice an opinion. The court will also need to look at each party’s financial situation to determine an appropriate amount of child support, in accordance with the guidelines.
If you need more information on how to file a divorce in NJ, get in touch with the Law Offices of Peter Van Aulen. With over 20 years’ experience, he can provide you with information in a free initial consultation today. Call 201-845-7400 to set up an appointment.