The Basics to a New Jersey Divorce

If you are considering divorce in New Jersey, you may have several questions. Below you will find some explanations of some pertinent issues that often precipitate when dissolution is on the table. This information can be helpful in assessing your rights and responsibilities pursuant to a divorce in New Jersey.

Filing Requirements

First, there is a residency condition for the dissolution process. In other words, one of two spouses must have lived in New Jersey for at least one complete year before divorce papers are filed with a local court.

Second, the filer must have a legal cause for the divorce. This prerequisite speaks more to the timeline of the process. There are several reasons for which the court will grant a divorce in New Jersey, and many of these grounds dictate when a person may file the complaint. For example:

  • Adultery has no standard waiting period. When infidelity is involved, a party may file for divorce right away.
  • A filing on the basis of extreme cruelty means the filer must wait a total of three months to file after the last incident of cruelty.
  • If one wants to divorce on desertion grounds, he or she must wait at least 12 months after abandonment before filing a complaint.
  • No-fault divorce occurs when partners have been living independently for 18 uninterrupted months. After this period, a party may file a complaint.

These general issues are valid grounds for a divorce in the state. However, there are other grounds for dissolution, including alcohol or drug abuse, institutionalization, imprisonment and deviant sexual conduct.

The spouse filing the action is called the "plaintiff," and the responding spouse is called the "defendant." Divorce actions are initiated in the Chancery Division of the Superior Court in the relevant county.

The Divorce Timeline, in General

Uncontested Divorce

An uncontested or "non-contested" divorce is when parties do not dispute what is alleged in the divorce complaint. If the particular matter is uncontested, the matter may be placed on a court calendar as soon as 90 days after the initial filing. Once the hearing is arranged, the parties will receive a notice of the scheduled court appearance.

To file on an uncontested basis, the following prerequisites must be met:

  • Unless alimony is sought, one or both spouses must have resided in the state for at least one complete year.
  • Both spouses must agree on child support and child custody.
  • Both parties must agree on property division matters.

If the parties meet these requirements, in the majority of cases, divorce may be completed in an expedited fashion.

Contested Divorce

However, if the divorce is contested, it may take a bit longer for the case to resolve. This is because there may be assessments that must be carried out before the case can be presented to a judge. For instance, in cases where spouses own property jointly, the court could require an official appraisal before the division of property is fleshed out before the presiding judge.

Yet, there are some ways to help advance the process. Parties can work with their attorneys to resolve divorce issues outside of the court. If a settlement is formed, the resolution can be field with the court as part of the official divorce decree.

Moreover, some cases are submitted to an Early Settlement Panel (ESP) wherein parties and their legal representatives conference with a group of family law attorneys, who help determine any pending issues in the divorce matter. If a resolution is reached in an ESP, the agreement will become formalized with the court. If the conference is unsuccessful and parties cannot agree, the matter will be scheduled for a hearing in front of a family law judge.

Property Division

Much of the dissolution process revolves around the property division process. In New Jersey, property and debt issues are typically settled between the parties by a signed agreement or the property distribution is decreed by the Superior Court. It is important to note that property can include several assets, including businesses, 401K's, pension plans or insurance policies — even if it is solely in the name of one spouse. Such property can still be "marital" if it was acquired during the marriage.

Equitable Distribution

New Jersey is considered an "equitable distribution" state. When the parties are unable to reach a settlement, the court will assess all assets as follows:

  1. First, it will go through a discovery process to decipher what property or debt is considered marital. Essentially, marital property is jointly owned assets or property of the marriage. In general, marital assets do not include property owned before the marriage, personal gifts or bequests made to a spouse by a third party.
  2. Next, the court will assign a monetary value to all marital property and debt.
  3. Finally, the judge will distribute the marital assets between the two parties in an equitable and fair method. Equitable does not mean equal (50/50). The fair distribution of assets considers many factors. Non-marital or personal property is retained by each party and not subject to distribution.

In considering what is fair and equitable, the court will examine several factors, including some of the following:

  • The employment and income of each party, if applicable
  • Contributions to the marriage by each party
  • The educational background of the parties

The court will consider additional aspects in making an assessment. In essence, the judge will distribute property on a case-by-case basis, in a manner that is reasonable, based on the unique lifestyles and circumstances of the parties.

Child Custody

Child custody can be another contentious issue for a divorcing couple. In New Jersey, parents are encouraged to share the parental responsibilities, duties and rights of childrearing and resolve custody and visitation issues on their own. If an agreement is reached, in most cases, the court will enforce a child custody settlement, providing the arrangement is in the best interests of the particular child.

If parents cannot resolve a custody issue alone, the parties are frequently referred to a family law mediator. However, if parties cannot come to an agreement regarding the custodial arrangement of their child, the court will request an investigation. If so, a court officer will carefully interview, examine and assess all parties and weigh in on each parent's fitness as a caretaker. Then, the officer will make an informed suggestion to the judge, which will be reviewed and heavily considered.

Best Interests of a Child

Within a contested custody hearing, parties will have the ability to provide a proposed parenting plan; however, the court's determination will be ultimately decided with the child's best interests in mind. When examining the best interests of a child, New Jersey courts will look at several important factors, including:

  • The character or fitness of each parent
  • The developmental needs of the child
  • The relationship of the child with his or her parents

The court will mull over other issues in deciphering what is in the child's best interests. In sum, the judge will want to place the child in a living situation that is beneficial to his or her physical, educational and developmental needs. Once the judge has analyzed the living situations of both parties, he or she will formalize a unique custody arrangement that is suitable for the specific family, and this order will be filed and formalized with the court.

Child Support

Under New Jersey law, minor children are entitled to financial support, as this is a natural obligation of the care giving process. Children have specific developmental needs, and monetary assistance is a required and essential responsibility of lawful parents.

When divorce ensues, child support conversations typically arise after custodial arrangements are in place. For example, the custodial parent, the parent with whom the child resides, may feel entitled to financial assistance from the noncustodial parent.

In many cases, the noncustodial parent will make support payments to the custodial parent in accordance with set formal guidelines that are expressed in the law. The law actually presumes that the custodial parent is entitled to financial reimbursement for childrearing expenses. The guidelines help allocate the costs among the parents, with consideration of standard care giving costs and the parents' incomes.

Generally, New Jersey's set guidelines will be used when calculating support obligations; however, standard payments can be challenged in unique circumstances, providing there is sufficient cause. If a court elects to deviate from the guidelines, it must consider a number of statutory considerations, including:

  • Sources of income for each party
  • The relative age and health of each parent
  • The needs of the child

These factors, in addition to several others, may help a judge resolve any pending disputes concerning child support payments.

New Jersey Divorce

Filing, property division, child custody and child support are essential components to most dissolution matters. This generalized discussion speaks to some of the issues that may arise. If you would like to learn more about divorce in detail, speak to a family law attorney in the area.