Divorce in New Jersey - The Basics

    Divorce is a very complex field of law. Many other areas are called into question when getting divorced. These include: property and real estate law, tax law, debtor/creditor and possibly even bankruptcy, just to name a few. Because of this a good divorce lawyer -- and YOU -- need to be aware of the numerous issues which will confront you throughout this process.

    No one source (especially a web page!) can possibly provide you all the information you need to know. The following information is provided merely so that you will have a basic knowledge which we hope will make your initial consultation with an attorney more productive. We will discuss: the grounds for divorce, the basics of equitable distribution, the basics of child custody and support, and an overview of the divorce process. Finally, we offer you links to other web sites which may provide you with more information.

Grounds for Divorce:

    You must have grounds to obtain a divorce in New Jersey. The grounds which are recognized are listed below. In order to obtain a divorce in New Jersey you must allege (and possibly prove) one or more of the following. The more common grounds are discussed in slightly more detail below.

  • Irreconcilable Differences
  • Abandonment/Desertion (for twelve months)
  • Adultery
  • Deviant Sexual Conduct
  • Extreme Cruelty
  • Habitual Drunkeness/Voluntary Addiction (for twelve months preceding filing)
  • Incarceration (for eighteen months preceding filing)
  • Institutionalization for a Mental Illness (for twenty-four months preceding filing)
  • Separation (for eighteen months)

    Irreconcilable differences is often referred to as a "no fault" divorce because you don’t have to allege your spouse did anything bad to lead to the divorce. This "no-fault" process may help lessen the stress put on the parties — and the children — during the divorce process. There are a few requirements to use this as your grounds for divorce: you must have lived in New Jersey for twelve consecutive months before filing the complaint; you and your spouse must have experienced irreconcilable differences for at least six months; and there must be no reasonable prospect of reconciliation.

    Abandonment and Separation are very similar in nature with but one significant difference, abandonment implies a more unilateral decision, such a where one spouse leaves the other. Separation connotes a more mutual decision, such as where the parties agree that one should leave the marital residence. 

    Separation requires that you and your spouse live in "different habitations." It is NOT sufficient that you and your spouse have separate bedrooms in the same house.

    However, abandonment may be actual, i.e. where one party leaves, or constructive, i.e. where one spouse has unjustifiably withheld marital relations from the other for the requisite twelve months.

    Extreme cruelty takes on many forms. It can be physical abuse, mental or verbal abuse, abuse of a child, substance abuse, or many other situations which make it unreasonable for two people to continue to cohabitate as husband and wife. 

    Note that the law imposes a three month "cooling off" period on this basis for divorce. In other words, the acts of cruelty you allege (you must list specific acts in your divorce complaint) cannot have occurred within the three months prior to filing. The underlying reason for this is simply that --as a matter of public policy -- the law does not want people having a fight and then racing to the courthouse only to then change their minds once they've "cooled off."

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Equitable Distribution:

    The distribution of assets in a divorce is a vast body of law. What is most important for you to realize is that very few divorces actually go to trial. Nearly all divorces settle. As such, the equitable distribution of your assets and debts can be almost any agreement you can reach between you and your spouse.

    You will be attempting to divide the marital assets and debts. Marital assets are generally those which were acquired between the date of marriage and the date the divorce complaint was filed.

    You should be aware that New Jersey is NOT a community property state. In other words, there is no presumption that all your assets will be divided evenly. It is true that this is a common resolution of divorces in New Jersey, but the law does not necessarily require such a distribution.

    One of the most common issues in equitable distribution is what to do with the house. In the easiest situations, neither party wants it or neither is able to afford it. In that case the house will be sold and the parties will have to divide the sale proceeds. If only one party wants the house, then s/he may have an opportunity to "buy-out" the other spouse for a percentage of the equity in the property. 

    For example, suppose you own a $100,000 house with a mortgage balance of $75,000. Suppose further you and your spouse agree that you can buy him/her out for fifty percent of the equity. You would then have to pay your spouse $12,500 (one-half of $25,000) and s/he would sign the Deed over to you. 

    NOTE: in this situation it is very common to require a refinancing of the underlying mortgage to remove the selling party's name from liability. In the example above you would actually have to refinance for $87,500 (the $75,000 mortgage plus the $12,500) so as to remove your spouse from all liability on the mortgage.

    Another commonly asked question concerns marital debt. For example, suppose you have a credit card with a $5,000 balance but the account is in your name alone, your spouse is not on the account. This may still be a marital debt, depending on what the purchases were. If it was $5,000 worth of household furniture or supplies for the marital residence, then this may be marital debt. If, on the other hand, the $5,000 was for a vacation you took without your spouse, it is not a marital debt.

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Custody/Child Support:

    Simply speaking, "custody" has two meanings. What most people refer to as custody is really residential custody, or with whom will the child(ren) live. "Custody" also includes legal custody, or which individual will have decision making authority over the major decisions in the child's life.

    Residential Custody can be with one parent -- with the other parent having parenting time or visitation; or you may agree on a Shared Parenting Plan such as where you alternate weeks. Residential custody is essentially limitless in the ways it can be resolved, so long as the parties agree.

    Commonly, one party is the Parent of Primary Residence ("PPR") and the other is the Parent of Alternate Residence ("PAR") who has parenting time according to a schedule. That schedule can be as flexible or as rigid as the facts require. For example, if you and your spouse are in high conflict and communication is difficult, you may want to place in writing all the details of the parenting time schedule. On the other hand, if you get along smoothly, you may want to leave it flexible, to accommodate your busy schedules.

    Legal custody is commonly jointly held by the parents. If one party is unfit to make care decisions for the child, then it may be appropriate for one party to have sole legal custody. Bear in mind that legal custody generally applies to major issues affecting the children, e.g. school or non-emergency medical decisions. The day-to-day decisions are commonly made by the parent having the child that day. For example, if your spouse has parenting time on Saturday s/he will decide what the child should wear. S/he need not consult you, even if you have joint legal custody.

    As to child support, New Jersey has enacted child support guidelines for determining the appropriate amount. These guidelines are rather complex and have line by line instructions (like a tax return!).

    The Guidelines work as follows. After conducting an exhaustive study, the State Supreme Court committee made certain findings as to what a typical family earning X dollars per week spends if they have Y number of children. This information was compiled into a table which is the basis for a child support award. The support amount on the table must be modified to fit your share of the incomes.

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The Divorce Process:

    Divorce procedures vary subtly from county to county in New Jersey, but for the most part they are similar. The course your divorce will take will be guided by the county in which it is to be heard, and also by the attorney you choose. For example, some attorneys prefer to file a complaint immediately. Others prefer to try reaching a settlement before actually filing suit. You will need to discuss this with your attorney.

    Regardless of how it is begun, at some point someone must file a complaint for divorce. In that complaint s/he will allege that one or more of the grounds is applicable to that case. The party filing is called the Plaintiff. The other party is called the Defendant.

    Once the complaint is filed it must be served upon the Defendant. This is commonly done personally using the Sheriff's Department or other individual. In many cases it may be done by mail, but this requires that the Defendant sign and return an Acknowledgment of Service (a return mail card is NOT sufficient).

    Once served, the Defendant has thirty-five days to file a response. The response could be an:

  • Answer -- denying the Plaintiff's grounds for divorce;
  • Answer and Counterclaim -- denying the Plaintiff's grounds for divorce while asserting his/her own grounds for divorce from the Plaintiff.
  • Entry of Appearance -- taking no stand on the grounds for divorce, but preserving his/her right to contest the Equitable Distribution phase of the divorce.

Assuming no settlement has been reached, discovery would then be exchanged. Common discovery includes Interrogatories (written questions to which you must supply written answers), and depositions (oral questions to which you give oral responses in the presence of a court reporter who makes a transcript of the proceeding).

    You may also have to attend an Early Settlement Panel (ESP). This is like an arbitration where both sides present their case to an experienced matrimonial attorney(s) who then makes a recommendation as to how the case should settle. If you and your spouse approve of the recommendation you can be divorced (usually that day) on those terms. If either side rejects the ESP recommendation then trial may be the next step.

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Links:

    There is quite a lot of legal information on the web, if you know where to start looking. In addition to the information we've provided above, the following links might be of interest.

    You can research state statutes on the web the State Legislature search instructions page. In particular, you might want to look at these statutes:

Divorce: § 2A:34-2
Property Division: § 2A:34-23
Alimony: § 2A:34-23b
Custody: § 2A:34-23
Parenting time: § 2A:34-23.3

Rutgers Law School Library permits you to search court opinions online. 

The State Judiciary has a web page containing information about family issues in New Jersey courts.

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Disclaimer: This web site is purely a public resource of general New Jersey information (it our intention, but not our promise or guarantee, that this information be correct, complete, and up-to-date). It is not intended be a source of legal advice.  Do not rely on information at this site or others in place of the advice of competent counsel. Christopher M. Carnelli complies with the New Jersey Rules of Professional Conduct. This web site is not sponsored or associated with any particular linked entity unless specifically stated. The existence of any particular link is simply intended to imply potential interest to the reader, inclusion of a link should not be construed as an endorsement.