This time of year can be depressing to some. And when you are going through a messy divorce, this can add more stress than you need. And there is nothing more difficult than trying to keep it together for your children and having to keep the schedules of the holidays at hand. You’re in pain and what’s worse, you miss your kids. We know how awful things are right now. You are at the lowest point of your life and you need guidance. So let us help you.
The pressure on parents during divorce is unique. The legal proceedings move at one speed while emotional adjustment moves at another, and the gap between the two is where people make decisions they regret. Decisions about leaving the house. About what to say to the children. About whether to give up something important to make the other side go away. The cases that turn out well are the ones where the person under pressure has competent guidance early enough to slow down the worst decisions and to plan strategically for the long-term issues.
“Dads in Divorce: A Father’s Guide to the Rights and Realities of Divorce” will give you the guidance you need to get through your divorce with your sanity. In this free e-book, you will find such information as:
- How to file a divorce complaint
- Financial realities that come with divorce
- How to figure out the right custody agreement for you and your spouse
- How alimony is determined by the courts
- What rights you have as a father
- Some dos and don’ts on going through a divorce
And much, much more!
How Divorce Actually Works in New Jersey
The legal framework is the same regardless of how amicable or contested the case turns out to be. A divorce action begins with the filing of a Complaint for Divorce in the Family Part of the Superior Court in the county where either party resides. New Jersey requires that at least one of the parties has been a resident of the state for one year before filing, although a shorter period applies in cases based on adultery.
The grounds for divorce in this state include both no-fault and fault grounds. Most cases proceed on irreconcilable differences, which requires only that the parties have experienced six months of disagreement that makes the marriage unsustainable. Separation for at least eighteen consecutive months is also a no-fault ground. The fault grounds, including adultery, extreme cruelty, desertion, addiction, and institutionalization, are rarely used today because the no-fault option is faster and avoids contested allegations.
The Complaint is followed by service on the other spouse. The defendant has thirty-five days to file an Answer, often joined with a Counterclaim raising the defendant’s own requests for divorce, custody, support, and equitable distribution. The court issues a case management order shortly after the Answer, setting deadlines for discovery, custody and parenting time recommendations, and other procedural milestones.
Discovery in a divorce case typically includes the exchange of Case Information Statements, which are sworn financial disclosures listing income, expenses, assets, and liabilities. Tax returns, pay stubs, bank statements, retirement account statements, and other financial documents are also exchanged. The depth and duration of discovery depends on the complexity of the marital estate. Couples with straightforward finances may complete discovery in a few months. Cases involving businesses, investment portfolios, real estate holdings, or hidden assets can take much longer.
Equitable Distribution and What It Actually Means
New Jersey is an equitable distribution state rather than a community property state. The difference matters. Community property states presume an equal split of marital assets. Equitable distribution requires the court to divide marital property fairly, which is not always the same as equally. The judge considers a list of statutory factors under N.J.S.A. 2A:34-23.1, including the duration of the marriage, the age and health of the parties, each spouse’s income and earning capacity, the contributions of each party to the acquisition of property, and the standard of living during the marriage.
Marital property is everything acquired during the marriage, regardless of which spouse’s name is on the title. Houses, retirement accounts, bank accounts, vehicles, business interests, and investments all fall within marital property when acquired during the marriage. Premarital assets and gifts or inheritances received by one spouse during the marriage are generally separate property, although the analysis can become complex when separate property gets commingled with marital property or when separate assets appreciate substantially during the marriage.
The marital home is often the most emotionally charged asset in a divorce. Practical resolutions include selling the home and dividing the proceeds, one spouse buying out the other’s interest, or one spouse remaining in the home until a defined event such as the youngest child reaching adulthood. Each option has tax and financial implications that should be analyzed before any agreement is signed.
Retirement accounts often comprise a large share of the marital estate. 401(k) accounts, pensions, IRAs, and similar vehicles accumulated during the marriage are subject to equitable distribution. Dividing these accounts usually requires a Qualified Domestic Relations Order, a separate court order that directs the plan administrator to transfer a portion of the account to the other spouse. Improperly drafted QDROs can cause tax consequences and loss of value, so this area deserves careful attention.
Custody and Parenting Time
New Jersey distinguishes between legal custody and physical custody. Legal custody is the right to make major decisions about the child’s life, including decisions about education, health care, and religious upbringing. Physical custody, or residential custody, refers to where the child lives. Most parents share joint legal custody, with one parent designated as the parent of primary residence. Joint physical custody, where the child spends substantial time in both households, is also possible and is becoming more common.
The standard the court applies is the best interests of the child. The statutory factors under N.J.S.A. 9:2-4 include the parents’ ability to agree, communicate, and cooperate in matters relating to the child, the willingness of each parent to accept custody, the interaction of the child with each parent and with siblings, the history of domestic violence if any, the safety of the child and either parent, the preference of a child of sufficient age and capacity, the needs of the child, the stability of the home environment offered, the quality and continuity of the child’s education, the fitness of the parents, the geographical proximity of the parents’ homes, the extent and quality of the time spent with the child prior to or subsequent to the separation, the parents’ employment responsibilities, and the age and number of the children.
Parenting time schedules are tailored to the specific family. The traditional alternate-weekend schedule with one weeknight dinner is one option. Schedules giving each parent substantial weekday and weekend time, including arrangements like 2-2-3 or week-on-week-off, are increasingly common. Holiday schedules typically alternate the major holidays, with each parent receiving guaranteed time with the children on specific days each year regardless of the regular schedule.
The role of the parent of alternate residence is no less important than that of the parent of primary residence. Both parents have rights to information about the child’s education, medical care, and activities. Both parents have the right to participate in major decisions when legal custody is shared. A parent who is told he or she has “visitation” rather than custody should understand that the label is largely a relic and that the substantive rights are determined by the parenting plan, not by terminology.
Alimony and Spousal Support
Alimony in New Jersey is governed by N.J.S.A. 2A:34-23 and the factors that statute lists. The court considers the actual need and ability of the parties to pay, the duration of the marriage, the age and health of the parties, the standard of living during the marriage, the earning capacities of the parties, 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 history of financial contributions, and the equitable distribution of property.
The 2014 alimony reform eliminated permanent alimony and replaced it with several categories. Open durational alimony is available in marriages of twenty years or more. Limited duration alimony, formerly called term alimony, is available in marriages of less than twenty years and is generally capped at the length of the marriage. Rehabilitative alimony is awarded when the dependent spouse needs financial support for a defined period to acquire training or employment. Reimbursement alimony compensates a spouse who supported the other through education or training.
Modification of alimony is permitted when there is a substantial change in circumstances. Loss of employment, retirement, disability, cohabitation by the supported spouse, and significant changes in income can all support modification petitions. Retirement at the federal retirement age is presumed to be a substantial change under the 2014 reform, though the presumption can be rebutted.
Child Support and the Guidelines
New Jersey child support is calculated using the New Jersey Child Support Guidelines, which produce a presumptive support amount based on the combined income of the parents, the number of children, the parenting time arrangement, and various credits and adjustments. The Guidelines apply in cases where combined net income falls below a defined ceiling. Above that ceiling, the Guidelines amount is a starting point that may be adjusted based on the children’s actual needs.
The support obligation includes a base amount and additional contributions for health insurance, work-related child care, predictable unreimbursed medical expenses, and other defined categories. College expenses for adult children are a separate analysis governed by case law that considers the parents’ financial circumstances, the child’s academic ability and effort, and the family’s history regarding higher education.
Enforcement of child support is handled through Probation and the family court system. Wage garnishment, license suspension, passport denial, and contempt proceedings are all available remedies. Modifications follow the same substantial change in circumstances standard that applies to alimony.
Father’s Rights and Common Misconceptions
The presumption that mothers automatically receive custody has been gone from New Jersey law for decades, but it persists in the minds of many fathers and prevents them from advocating fully for their children. The statute and the case law are gender-neutral. A father who has been actively involved in the children’s lives, who has a stable home, and who can cooperate with the other parent stands on equal footing with a mother under New Jersey law.
The most damaging mistake a father can make in a divorce is to walk away from the children to avoid conflict. Voluntary reductions in parenting time become evidence of preference and can be used against the father later. Maintaining consistent contact, attending school and medical appointments, and continuing involvement in extracurricular activities all support the legal position that joint physical custody or substantial parenting time is appropriate.
Documented financial support during the marriage matters too. Fathers who paid the household bills, contributed to retirement accounts, and supported the family financially have an equitable distribution position that reflects their contributions. Documentation of those contributions, ideally in the form of bank records and statements rather than personal recollection, supports the financial side of the case.
A skilled New Jersey Family Law Attorney understands the full landscape and helps clients position themselves for the long-term outcome rather than the immediate emotional response.
Common Mistakes in a New Jersey Divorce
Moving out of the marital home without a written agreement is one of the most damaging. Possession of the home can become possession of the children, particularly when the move happens before custody has been addressed by the court. A father who moves out and then tries to recover equal parenting time often faces an uphill battle.
Hiding assets is another. Financial disclosures are sworn statements, and the court has a long memory for parties who have concealed property. Discovery rules allow extensive investigation of finances, and forensic accountants can usually find undisclosed assets. The consequences of being caught hiding assets include the loss of those assets, sanctions, and erosion of credibility on every other issue in the case.
Disparaging the other parent in front of the children damages cases at every level. The conduct undermines the children. It also appears in custody evaluations, in the children’s own statements to mental health professionals, and in the testimony of teachers and family friends. Avoid it, regardless of how justified you feel.
Posting on social media presents the same problems in divorce that it presents in other litigation. Photographs, statements about the other party, and evidence of activities all become exhibits. Set accounts to private. Stop posting about anything related to the marriage, the divorce, or the children.
Accepting an unfair early settlement to end the conflict is the final major mistake. The terms of a Marital Settlement Agreement are difficult to modify once entered. A few additional months of negotiation, mediation, or litigation often produces a result that better protects the client’s long-term financial position.
Questions People Ask
How long does a divorce in New Jersey take?
Uncontested divorces with full agreement on all issues can be completed in three to six months from filing. Contested cases involving custody disputes, business valuations, or substantial financial disputes can take a year or longer. Cases that proceed to trial take longer still.
Do I have to go to court?
Most divorces settle without trial. Mediation, the Early Settlement Panel program in many counties, and good-faith negotiations between counsel resolve the vast majority of cases. The court appearance for the final divorce hearing is usually brief when the parties have agreed on all issues.
What if my spouse refuses to participate?
A divorce can proceed even when one spouse refuses to engage. Service is accomplished through the court rules. A defendant who fails to answer can be defaulted, and the case can proceed to a default judgment. The court still has to address the substantive issues of custody, support, and equitable distribution, but the absence of the defendant does not prevent the case from moving forward.
Can a prenup or postnup affect the divorce?
A valid prenuptial or postnuptial agreement can control many of the financial issues in the divorce. New Jersey requires that prenuptial agreements be in writing, signed voluntarily, supported by adequate financial disclosure, and not unconscionable. Agreements that meet these standards are generally enforced. Agreements that fail any of these requirements can be challenged.
Remember, this is a very trying time in your life but you don’t have to go through it alone. Download our e-book then contact us today and we will help you through it.