Frequently Asked Questions about Divorce


“How do I ask my spouse for a divorce?” icon_video.gif (336 bytes)

Any divorce is a very delicate subject. Either both of you knew that this was a long time coming, or one spouse had absolutely no idea. In telling your spouse that you are contemplating a divorce — or perhaps that you are seeing an attorney — you must be very delicate in your approach. I suggest that you sit down with your spouse and talk about this matter beforehand. There is nothing more shocking than opening a door — or opening a present — and finding divorce papers. Quite frankly, it’s a little tacky.

However, if you have children, you and your spouse will be at several events in the future, whether it’s graduations, weddings, or other happy events. You do not want to poison your relationship with your spouse, knowing that they will have a lifetime of seeing you and remembering this event. You should always take caution when discussing a divorce with your spouse.

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“Do I need a lawyer to get a divorce?” icon_video.gif (336 bytes)

Of course you need a lawyer to get a divorce! A lot of people think they know how to get a divorce because they read a book. This is extremely dangerous. You really should think of it like reading a medical encyclopedia to take out your own appendix. You could — but I wouldn’t suggest it. You need someone who can give you the adequate legal advice that is pertinent to your specific case. Every case is different, and a book cannot answer every question or resolve every issue. I highly suggest that you retain an attorney who will be suitable to you and help you reach your underlining goals.

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“Why should I use an attorney before mediation?” icon_video.gif (336 bytes)

Mediation is a wonderful tool to reach a workable solution between you and your spouse. However, power struggles may arise during the course of the mediation. I suggest that everyone consult an attorney prior to attending mediation, so that they know their respective rights. Also have an attorney attend mediation, as I frequently do with my clients. This helps reassure a client and reach a solution that is equitable, fair, and reasonable.

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“I built my business with no support from my spouse. Is he or she still entitled to a share of it?” icon_video.gif (336 bytes)

I represent a number of business owners, and this is a very common question. It’s also one that is not so simple. You must look at several factors under the equitable-distribution statutes, such as:

  • Was there a financial contribution from the other spouse towards the business?
  • Did martial assets go towards the business?
  • Was there a non-financial contribution by the non-owning spouse during the marriage?

These are very complex questions, which are very personal to your case.

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“I am currently in a domestic partnership. Should I enter into a civil union?” icon_video.gif (336 bytes)

If you are in a same-sex relationship and currently in a domestic partnership, you absolutely must enter into a civil union. The New Jersey Legislature has made a distinction between the rights of a domestic partner and the rights of a partner in a civil union. For example, real-estate laws are different, inheritance laws are different, your right to adopt is different… Children born during a civil union are presumed to be a child of both parents. There are significant and important differences, which is why New Jersey Legislature has attempted to convey upon partners in civil unions the rights of marriage. I highly suggest that you enter and convert your domestic partnership into a civil union. It does not automatically convert, and you must take affirmative steps to change this.

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“What can you suggest to your clients to help them through the divorce process?” icon_video.gif (336 bytes)

I frequently suggest to my clients that they have a support network around them. Divorce is extremely traumatic. You need someone else to turn to. While an attorney is a professional from whom you need to seek help, they can only give legal advice. I frequently suggest to my clients that they speak with a counselor or social worker, as well as an accountant, so that they will understand all their financial needs, helping them reach their financial goals at the end of the divorce. Getting divorced is really a team effort, and our clients are the center — or the captain — of our team.

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“I feel I should be reimbursed if I helped pay for my spouse’s education.”

You are not alone. I commonly have clients who complain about this very fact, whether it is the doctor who is now having a relationship with the nurse, or the lawyer who is now having a relationship with his secretary. You have not only supported him or her during their professional schooling, you have also paid for tuition — or perhaps your joint assets went towards paying tuition. You are entitled to reimbursement alimony, which is a simple way of paying for a degree or for their piece of paper. You may, in fact, be entitled to part of their future earnings based up on the investment you made while they were in school. However, every case is different, and you must discuss your facts with your attorney.

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“I want to take a kinder, gentler way of resolving our divorce. My spouse seems bent on her day in court. What can I do?”

Unfortunately, emotions run high during a divorce. It is an extremely emotional time for both spouses. Divorce places stress on both of you. She may feel extremely vulnerable and may in fact believe that having her day in court will give her back the control she needs. She may also feel that “having her day in court” will vindicate her. In either situation, nothing could be further from the truth. While court may be necessary in the future, the ability to develop a settlement which both of you fashion and negotiate is the best way to resolve your issues. At the end of the day, you and your spouse need to develop a workable solution to your custody, parenting time, and finances.  Her “day at court” provides only one solution: a judge, who does not know either one of you, will determine both of your fates. Discovery should and can occur without the filing of a Complaint — and, if possible, crafting a settlement proposal to your wife, which she can review with her attorney, will place both of you at an advantage. At the end of the day, both you and your spouse — not the judge or the attorneys — must live with the result.

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What are the ground rules for divorce in New Jersey? Does fault matter anymore?

Fault matters when you’re coming down to dollars and cents, but the majority of divorces are filed under irreconcilable differences.

In order to have a complaint based on irreconcilable differences, those differences have to have existed for at least six months and caused the demise of the marriage; you and your spouse must have no chance of reconciling or getting back together. New Jersey’s no-fault is the most popular means of filing a divorce complaint. No-fault can also be filed after 18 months separation, which means you and your spouse have lived separate and apart for a period of 18 months.

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Why would someone file for a no-fault divorce in New Jersey?

People often file for no-fault divorce when they have children, shared assets, or if they don’t want to bring a certain level of animosity into the divorce process. People realize that they’re going to attend graduations for their children together and they’re going to sit next to each other at other school events. The tone they create at the beginning of the divorce really determines how the two of them will proceed in the future.

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When is fault important in a divorce case?

The important fault cause of action is adultery. You would file under adultery if you believe your spouse has dissipated assets with regards to spending money on an affair and that is a legitimate and important reason for people to file for fault divorce. There are also fault causes of action in cases of extreme cruelty, desertion, addiction or habitual drunkenness, imprisonment, institutionalization, and deviant sexual conduct.

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What is the procedure for divorce? How do you initiate a divorce and how long will it take, particularly if it goes to court?

First you file a complaint for divorce and then the opposite party has 35 days to answer or to file an appearance. Frequently, they file a counter claim also alleging a cause of action for divorce. You then file a response to that cause of action or an answer to the counterclaim. Next, we conduct discovery and have case management conferences with the court, which lead us to an early settlement panel where two attorneys volunteer their time within that county to try to propose a resolution of your matter. If your case is not resolved, you attend economic mediation. If your case doesn’t settle, you then go to an intensive settlement conference, at the end of which, if you still haven’t settled, your case will be marked to trial. The divorce process takes approximately one year to two years in the event that your case doesn’t settle. However, if your case does settle, you simply contact the court and you can be divorced very quickly.

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Should someone hire a lawyer if they’re going to divorce?

Absolutely. Divorce can be an unwieldy process if you’re doing it on your own. You need some distance between you and your soon-to-be ex, because everything is personal in divorce. You need an attorney who understands the challenges, who understands the procedure, and who can give you that perspective and explain that procedure to you.

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Regarding child custody, what is the difference between joint legal custody and joint physical custody?

People going through divorce often say that they want joint custody of their child without understanding the difference between joint legal custody and joint physical custody. Joint legal custody is the right to make decisions with regards to the care of your child, such as educational, medical, and religious decisions in your child’s life. In New Jersey, most parents share the decision-making process.

Physical custody determines where your child is primarily going to live. In New Jersey, we have the parent of primary residence and the parent of alternate residence. When you’re discussing parenting time, your goal is the best parenting schedule for your child. That’s a decision you and your spouse should both have input on and should discuss as part of the divorcing process.

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What is the best way to determine custody?

In New Jersey, both parties would be required to attend a parent education class, which will explain custody as well as parenting mediation, at the courthouses. If the mediation is not successful, a custody expert is often obtained.

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Do divorcing parents need a custody expert?

If both parties are unable to agree upon who the parent of the primary residence is, you need a custody expert. A custody expert will interview each party, view each party with the child, and then make a recommendation as to what the parenting plan should be—not only with regards to the parent of primary residence, but also what the visitation plan should be.

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What are the child support guidelines and what expenses do they cover?

The child support guidelines are a formula in New Jersey, but they are a rebuttable presumption. After you determine the parent of primary residence and the parent of alternate residence, you enter each party’s income into the formula, as well as whether any alimony is being paid and the number of overnights each party has with the child. You also include additional costs that you may have for the children, such as medical insurance and other reoccurring expenses. Some people even include work-related childcare. The formula then computes an amount for what the weekly child support should be. The expenses include the parent of primary residence, cost for shelter, cost for transportation, clothing, school lunches, and ordinary expenses that the child has in living with the parent of primary residence.

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What happens in cases where there are extraordinary expenses? If the child is involved in sports or dance, are those costs covered by child support?

Those costs are not factored into the child support. It really depends upon the incomes of the parties and whether they agree that the child should be enrolled in those activities. If your child has always been an athlete, has always taken dance, or even if they have a special interest in doing a new activity, the parties will usually agree to pay equally or in proportion to their incomes for these additional costs. That can be put into your matrimonial settlement agreement or it could be agreed upon in addition to the child support guidelines.

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Do challenges like dividing assets or diving time with the children ever work themselves out over time? Or does that not happen?

It depends upon how good the agreement is. The better and more detailed your agreement with regards to a matrimonial settlement or property settlement, the more of these expenses you have spelled out. The more that expenses are anticipated—such as how you are going to divide the cost of a prom dress and renting a limo if you have a child in high school with prom coming up—the better it is going forward. The more detail that you have in an agreement, the better it is, because it really opens up the lines of communication for the two parties.

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What is considered matrimonial property and what is considered separate property in New Jersey?

In New Jersey, matrimonial property is called marital property and it is considered from the date of marriage to the date of the filing of the complaint for divorce, unless the parties agree to a different date of division. For example, some people might not want to file a complaint for divorce and would rather mediate or delay the filing. If they have an agreement determining the cut off date for the evaluation of the assets, they can choose to use that date instead.

Separate property is property that’s either acquired prior to the marriage or was acquired by another means, such as a gift from someone other than your spouse, an inheritance, or something that was acquired through non-marital efforts of the other party.

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Would you advice a divorcing person to keep the marital home?

It really depends upon the details of the case. Oftentimes, the marital home has a lot of work that needs to be done. People don’t necessarily consider that, especially if they have young children and they want to keep the house until the children graduate from high school. In many cases, people don’t realize that the house may need a new roof, new plumbing, or a new hot water heater. There are a lot of surprise expenses that occur with a house, so in determining a final settlement, they must budget for these opportunities and these issues that may arise in keeping the marital home.

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How do divorcing people go about dividing their retirement assets?

First we identify what types of assets there are. Is there a pension, differed compensation, a 401(k), or an IRA? Do we have a value on these assets? The first issue is identifying the assets and determining whether they are considered marital property or pre-marital property.

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How do people divide pensions as they’re going through divorce? What is a QDRO in relation to pensions?

A QDRO is a qualified domestic relations order. It is required under federal law. After you have a signed property settlement agreement, your attorney will send the agreement along with the pension information and the checklist to someone who prepares QDROs. All they do is prepare QDROs, because the nuances of federal law are quite difficult. Your attorney would then review the QDRO prior to it being sent out to the planned administrator where it would be “qualified”. If it meets the planned administrator’s approval, it is sent to the court and the judge signs the order. Then it is sent back to the planned administrator and the pension would subsequently be divided.

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Can IRAs be transferred between spouses if they’re going through a divorce?

In most cases, the marital portion of the IRA that is being divided is rolled over. In very rare circumstances do you need a QDRO for an IRA.

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What is mediation and how does it work?

Mediation is a process by which both parties seek an amicable resolution to their issues and their case with a third neutral party acting as a go-between to broker a deal. The benefits of mediation are that both parties have more control over the resolution of their case, as opposed to a judge telling them how their case will be resolved. It is an empowering process for both parties, because they know their situation, they know their children, and they know what will work best for the two of them moving forward.

If the mediator is successful, they draft a memorandum of understanding, which the attorneys then draft that into a marital settlement agreement or property settlement agreement for both parties to sign.

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Does each spouse have a mediator or is there one mediator for the two of them?

There’s only one mediator. However, I highly recommend that both parties go to mediation with a lawyer. The mediator’s job is to broker a deal between the two parties, but the mediator’s job is not to explain the law to each party or to make sure it’s a fair agreement. That is the job of the lawyer. If you have lawyers involved from day one in mediation, it streamlines the process and the parties are able to reach a workable solution that will have fewer revisions going forward and will most likely result in a marital settlement agreement.

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Does the lawyer attend mediation or do only the divorcing couple and the mediator attend?

It is preferable for attorneys attend the mediation, simply so that everyone is on the same page as to what everyone is agreeing upon. When parties attend mediation without an attorney, one party often has a different understanding as to what was negotiated and what occurred than the other party. If they were not present at the mediation, the lawyers review the memorandum of understanding and then make changes and comments. Having an attorney attend mediation is, believe it or not, a more cost effective way to resolve your action.

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What is the current alimony law in New Jersey? I understand it has recently changed.

That’s correct. The new law was signed into law in September 2014 and modifies the prior alimony statute. The biggest modification for divorcing couples is that the durational limits of alimony have changed. For any marriage that is less than 20 years in duration, the total amount of alimony shall not, except in exceptional circumstances, exceed the length of the marriage or civil union.

The term “permanent alimony” has been modified from the current alimony statute. However, the statute does continue to look at several factors, such as the need of the parties for second residences and the impact of an increase in living expenses on the ability of both parties to maintain a standard of living reasonably comparable to that which they established in the marriage or civil union. Neither party has a greater entitlement to that standard of living.

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