Divorce


There are as many reasons to stay married as there are to be divorced. If you are reading this section, you know how difficult the decision can be. There are no easy answers. However, you are in the right place to find the information you need to make the most educated and informed decision about divorce, custody, and child support.

An uncontested divorce occurs when both parties agree on the terms of separation, how to divide the assets, the debts, and custody and support issues, if they exist. It is far better for you and your spouse to resolve the child-related issues than to have a Court decide for you. The judge does not know you nor care about you, and some lawyers enjoy an expensive fight. Divorce merely ends a marriage and settles all the legal matters between the spouses.

Divorce Laws very from state to state. It is therefore wise to consult an attorney before you make any decisions concerning where and when you file. In order to file for a divorce in New Jersey, residency requirements must be met for the court to accept the case. If the court discovers it does not have jurisdictional rights to hear the case it will not be accepted or it will eventually be dismissed. The requirements are as follows:

  1. Jurisdiction in actions for divorce, either absolute or from bed and board, may be acquired when process is served upon the defendant as prescribed by the rules of the Supreme Court, and
  2. When, at the time the cause of action arose, either party was a bona fide resident of this State, and has continued so to be down to the time of the commencement of the action; except that no action for absolute divorce shall be commenced for any cause other than adultery, unless one of the parties has been for the 1 year next preceding the commencement of the action a bona fide resident of this State; or
  3. When, since the cause of action arose, either party has become, and for at least 1 year next preceding the commencement of the action has continued to be, a bona fide resident of this State. (New Jersey Statutes – Title 2 A – Chapters: 34-8, 34.10)

Grounds For Filing

  • The Complaint for Divorce must declare the appropriate New Jersey grounds upon which the divorce is being sought. The appropriate lawful ground will be that which the parties agree upon and can substantiate, or that which the filing spouse desires to prove to the court. The divorce grounds are as follows:Divorce from the bond of matrimony may be adjudged for the following causes heretofore or hereafter arising:
  • Adultery; 
  • Willful and continued desertion for the term of 12 or more months, which may be established by satisfactory proof that the parties have ceased to cohabit as man and wife;
  • Extreme cruelty, which is defined as including any physical or mental cruelty which endangers the safety or health of the plaintiff or makes it improper or unreasonable to expect the plaintiff to continue to cohabit with the defendant; provided that no complaint for divorce shall be filed until after 3 months from the date of the last act of cruelty complained of in the complaint, but this provision shall not be held to apply to any counterclaim;
  • Separation, provided that the husband and wife have lived separate and apart in different habitations for a period of at least 18 or more consecutive months and there is no reasonable prospect of reconciliation; provided, further that after the 18-month period there shall be a presumption that there is no reasonable prospect of reconciliation;
  • Voluntarily induced addiction or habituation to any narcotic drug as defined in the New Jersey Controlled Dangerous Substances Act, P.L.1970, c. 226 or habitual drunkenness for a period of 12 or more consecutive months subsequent to marriage and next preceding the filing of the complaint;
  • Institutionalization for mental illness for a period of 24 or more consecutive months subsequent to marriage and next preceding the filing of the complaint;
    Imprisonment of the defendant for 18 or more consecutive months after marriage, provided that where the action is not commenced until after the defendant’s release, the parties have not resumed cohabitation following such imprisonment;
  • Deviant sexual conduct voluntarily performed by the defendant without the consent of the plaintiff. (New Jersey Statutes – Title 2 A – Chapters: 34-2

Filing Spouse Title

Plaintiff. The Plaintiff is the spouse who initiates the filing procedure with the family law or domestic relations court.

Non-Filing Spouse Title

Defendant. The Defendant is the spouse who does not file the initial divorce papers, but rather receives them by service.

Primary Documents

Complaint for Divorce and Judgment of Divorce. These are the essential documents needed to start and finalize a divorce according to New Jersey law. There are anywhere from ten to twenty other documents that may be required throughout the filing process. A few other documents that are typically filed during the process are: Cover Letter to Clerk, Case Information Sheet, Summons, Appearance, Financial Statement for Summary Support Actions, and Declaration Under the Uniform Child Custody Jurisdiction Act.

Property Distribution

Since New Jersey is an “equitable distribution” state, the marital property shall be divided in an equitable fashion. Equitable does not mean equal, but rather what is fair. The court will encourage the parties to reach a settlement on property and debt issues otherwise the court will declare the property award.

In making an equitable distribution of property, the court shall consider, but not be limited to, the following factors:

  • The duration of the marriage;
  • The age and physical and emotional health of the parties;
  • The income or property brought to the marriage by each party;
  • The standard of living established during the marriage;
  • Any written agreement made by the parties before or during the marriage concerning an arrangement of property distribution;
  • The economic circumstances of each party at the time the division of property becomes effective;
  • The income and earning capacity of each party, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children, and the time and expense necessary to acquire sufficient education or training to enable the party to become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage;
  • The contribution by each party to the education, training or earning power of the other;
  • The contribution of each party to the acquisition, dissipation, preservation, depreciation or appreciation in the amount or value of the marital property, as well as the contribution of a party as a homemaker;
  • The tax consequences of the proposed distribution to each party;
  • The present value of the property;
  • The need of a parent who has physical custody of a child to own or occupy the marital residence and to use or own the household effects;
  • The debts and liabilities of the parties;
  • The need for creation, now or in the future, of a trust fund to secure reasonably foreseeable medical or educational costs for a spouse or children;
  • The extent to which a party deferred achieving their career goals; and
  • Any other factors which the court may deem relevant.

In every case, the court shall make specific findings of fact on the evidence relevant to all issues pertaining to asset eligibility or ineligibility, asset valuation, and equitable distribution, including specifically, but not limited to, the factors set forth in this section.

It shall be a rebuttable presumption that each party made a substantial financial or nonfinancial contribution to the acquisition of income and property while the party was married. (New Jersey Statutes – Title 2 A – Chapters: 34-23)

Spousal Support

Not all cases involve support from one spouse to the other. The obligation of one spouse to support the other financially for a temporary or permanent basis is decided on a case-by-case basis as agreed to by the parties or at the court’s discretion.

In all actions brought for divorce, divorce from bed and board, or nullity the court may award one or more of the following types of alimony: permanent alimony; rehabilitative alimony; limited duration alimony or reimbursement alimony to either party. In so doing the court shall consider, but not be limited to, the following factors:

  • The actual need and ability of the parties to pay;
  • The duration of the marriage;
  • The age, physical and emotional health of the parties;
  • The standard of living established in the marriage and the likelihood that each party can maintain a reasonably comparable standard of living;
  • The earning capacities, educational levels, vocational skills, and employability of the parties;
  • The length of absence from the job market of the party seeking maintenance;
  • The parental responsibilities for the children;
  • The time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, the availability of the training and employment, and the opportunity for future acquisitions of capital assets and income;
  • The history of the financial or non-financial contributions to the marriage by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities;
  • The equitable distribution of property ordered and any payouts on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair;
  • The income available to either party through investment of any assets held by that party;
  • The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a non-taxable payment; and
  • Any other factors which the court may deem relevant.

When a share of a retirement benefit is treated as an asset for purposes of equitable distribution, the court shall not consider income generated thereafter by that share for purposes of determining alimony. (New Jersey Statutes – Title 2 A – Chapters: 34-23)

Child Custody

When minor children are involved in a divorce, the New Jersey courts will do everything possible to help lessen the emotional trauma the children may be experiencing. If the parents cannot come to an agreement regarding the issues involving the children, the court will establish the custody order at its discretion.

A child custody determination made by a court of this State that had jurisdiction under this act binds all persons who have been served in accordance with the laws of this State or notified in accordance with Section 8 of this act or who have submitted to the jurisdiction of the court, and who have been given an opportunity to be heard. As to those persons, the determination is conclusive as to all decided issues of law and fact except to the extent the determination is modified.

In determining the appropriate sole or joint custody arrangement the court will consider the following factors, but not limited to: 1. the physical, emotional, religious and everyday needs of the children 2. the wishes of the child is deemed to be of sufficient age and maturity. (New Jersey Statutes – Title 2 A – Chapters: 34-23)

Child Support

New Jersey child support guidelines are based on the Income Shares Model for calculating child support. The monthly support amount determined by applying the guidelines is divided proportionally according to each parent’s income. These two support amounts are then offset to establish which parent will pay the other parent for support of the child. All income is typically verified by examining past W-2’s and child support worksheets are available at the courthouse.

In determining the amount to be paid by a parent for support of the child and the period during which the duty of support is owed, the court in those cases not governed by court rule shall consider, but not be limited to, the following factors:

  • Needs of the child;
  • Standard of living and economic circumstances of each parent;
  • All sources of income and assets of each parent;
  • Earning ability of each parent, including educational background, training, employment skills, work experience, custodial responsibility for children including the cost of providing child care and the length of time and cost of each parent to obtain training or experience for appropriate employment;
  • Need and capacity of the child for education, including higher education;
  • Age and health of the child and each parent;
  • Income, assets and earning ability of the child;
  • Responsibility of the parents for the court-ordered support of others;
  • Reasonable debts and liabilities of each child and parent; and
  • Any other factors the court may deem relevant.

The obligation to pay support for a child who has not been emancipated by the court shall not terminate solely on the basis of the child’s age if the child suffers from a severe mental or physical incapacity that causes the child to be financially dependent on a parent. The obligation to pay support for that child shall continue until the court finds that the child is relieved of the incapacity or is no longer financially dependent on the parent. However, in assessing the financial obligation of the parent, the court shall consider, in addition to the factors enumerated in this section, the child’s eligibility for public benefits and services for people with disabilities and may make such orders, including an order involving the creation of a trust, as are necessary to promote the well-being of the child. (New Jersey Statutes – Title 2 A – Chapters: 34-23)

When going through a divorce it is important to have an experienced lawyer guide you through this process. The Law Offices of Douglas C. Anton, Esq. will work hard to get clients the results they want in a divorce case.

Please contact the Law Offices of Douglas C. Anton, Esq for a case evaluation and to schedule an appointment.

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