Family Law FAQ
Do I need to hire an attorney to handle my family law matter?
While you are not required to retain an attorney to handle your family law matter, there are intricate nuances contained within the family and matrimonial laws that are not always black and white. Having experienced counsel can place you at an advantage over handling the matter on your own. An experienced family law attorney can simplify your otherwise complex issues.
Can my spouse and I use the same attorney for our family law matter?
No; it is a conflict of interest and it is impermissible for one attorney to represent both parties in a matrimonial matter. Should either party elect to have representation, only that party can receive advice from that attorney; the other party may elect to proceed without representation or retain his or her own attorney.
How does the divorce process work?
Some divorces are simple and can be handled with a minimum amount of court involvement. However, most divorces are more complex and can take many different courses. The following is a basic outline of the divorce process.
- One spouse contacts a lawyer, who prepares a complaint setting forth the reasons divorce should be granted.
- The complaint is filed with the court and served on the other spouse, together with a summons that requires the second spouse's response.
- The served spouse must respond within the time limit prescribed or it will be assumed that he or she does not contest the petition, in which case the petitioner will request a default judgment. The response, or answer, must express the relief that the answering spouse requests.
- A Case Management Conference is held, a first opportunity for the parties to meet the judge who will be hearing their case. A Case Management Conference is, in essence, a scheduling conference, during which the attorneys outline the issues on behalf of their clients, and the judge sets a schedule by which information must be exchanged.
- This exchange of information, the discovery process, the takes place.
- The parties may attempt to reach a settlement, which can be initiated voluntarily or facilitated by the parties' lawyers or a neutral third party, such as a mediator.
- If the agreement cannot be reached without further assistance, the parties will be assigned to an Early Settlement Panel, two or three experienced attorneys from within the county who are otherwise neutral and unrelated to the case. Each attorney will submit to the panel a proposal on behalf of his or her client, outlining that client’s wishes for settlement. After reviewing these proposals, the Panel will hear the arguments of counsel, and then make recommendations to the parties regarding settlement. This process is non-binding.
- At any time during the pendency of a divorce case, no matter at what point in the proceedings, if a settlement is reached, the matter will be scheduled by the court for an “uncontested” hearing, at which the parties will be divorced and the agreement entered with the judgment of divorce.
- If agreement still cannot be reached regarding economic issues, the matter will be sent to an economic mediator.
- If there still is no agreement, or if the parties cannot reach an agreement regarding custody and visitation, the case will go to trial.
- At trial, the attorneys present the evidence and arguments for both sides; and then the judge decides the issues and grants the divorce.
- Either or both parties can appeal the judge's decision to a higher court.
If I want to dissolve a Civil Union in New Jersey must I go through a divorce?
Yes, the issues involved in dissolving a civil union are parallel to those involved in dissolving any marriage, including custody, support, and equitable distribution, and the same laws and precedents apply.
How does a court decide which parent will get custody of a child?
The primary standard how the courts determine custody and parenting schedules is the "best interests of the child." This standard is designed to protect the safety, happiness, physical, mental and moral welfare of the child.
Generally, custody arrangements fall into one of three categories: sole custody, joint legal custody, or joint physical custody. Sole custody awards both the legal and physical custody to one spouse, and is very rare. Joint legal custody provides that both spouses have joint responsibility for all major decisions regarding the child's health, welfare and education. However, in a joint custody case, the court or parties will usually designate one parent’s home as the child's principal residence and set a parenting plan for the other parent. Joint physical custody cases are really only feasible when the divorced spouses live in close proximity and can reasonably cooperate with each other.
When the parents cannot agree on a custody arrangement, the court will make the decision for them. When determining the child's best interests, the court may consider many factors, including:
- The child's age
- The child's gender
- The child’s needs
- The child's physical and mental health
- The parents' physical and mental health
- The parents' lifestyles
- Any history of abuse or domestic violence
- The emotional bonds between the parent and the child
- The parent's ability to give the child guidance
- The stability of the home environment offered
- The quality and continuity of the child's education;
- The parent's ability to provide the basic necessities, such as food, shelter, clothing and medical care
- The child's routines, including home, school, community and religion
- The willingness of the parent to encourage a healthy, ongoing relationship between the child and the other parent
- If the child is above a certain age, the child's preference
- The parents’ preference
- Which parent has been the child's primary caretaker
- The interaction of the child with parents, siblings and other influential persons;
Issues such as child custody have also advanced in the courts as cultural and societal attitudes have changed. While mothers were favored in many custody disputes of the past, fathers are given much more consideration now. Custody battles, while always difficult and emotional, have become even more complicated as reproductive technology has increased the ways in which people can become parents. Family lawyers and judges are faced with new, difficult and sensitive questions such as who gets custody of fertilized embryos when a couple that was involved in infertility/assisted-reproduction treatments separates. Surrogate parenting also presents custody issues when the surrogate fails to abide by the surrogacy contract or wants visitation with the child. Equally difficult issues can arise when sperm or egg donors make some claim to their genetic offspring. These issues involve questions relating not only to custody laws, but also to those involving adoption, children's rights and paternity. As technology advances, the law will be presented with an even greater challenge to keep pace.
What are parents’ obligations to their children?
Every parent has the duty to provide his or her children with the basic necessities of life, including food, clothing and shelter. This duty usually terminates when the child is emancipated, defined as the happening of any one of the following events: reaching the age of eighteen years or graduation from college, which ever last occurs, the marriage of the child, permanent residence away from the residence of the custodial parent, except for college, the death of the child, or entry into the Armed Forces of the United States. However, the support obligation can extend beyond that point if the child is unable to support him or herself. While the law generally does not dictate the level of support that is provided when the children live with both parents, when, through divorce or other circumstances, the child is living with one parent, there are laws specifying the amount of financial support the non-custodial parent must provide.
How is the amount of child support calculated?
New Jersey has developed guidelines that help establish the amount of child support that must be paid. They are all based on the parents' incomes, expenses and the needs of the children. The guidelines are set out in a chart-type format that calculates the child support amount as a percentage of the paying parent's income that increases as the number of children being supported rises. The purpose of guidelines is to aid the judge and parties in determining child support amounts, but deviation is permitted when there are good reasons to do so. If, for instance, one party or a child has higher than average expenses, the amount can vary. In addition, if the court determines that the paying parent is voluntarily earning less than he or she could for the purpose of minimizing the child support obligation, the judge can calculate the amount of child support based on what the paying parent is capable of earning. Included in the calculation is the child's standard of living before the parents' separation or divorce, the paying parent's ability to pay, the custodial parent's needs and income, the needs of the child or children, including educational costs, daycare expenses and medical expenses.
Once a court issues a child support order, can the amount of support that is paid be changed?
The amount of child support may be modified under certain circumstances and through a variety of methods. The simplest method is for the parents to agree to a change, but the court must approve even an agreed-upon change in order for it to be enforceable. When there is no voluntary agreement, the party seeking the change must file an application outlining the requested relief and the reasons for it. Often, the court will schedule a hearing. The court usually will not grant the request unless there has been a significant change in circumstances that justifies the change, such as a significant increase in either parent's income or a considerable change in the needs of the child. Changes in the child support laws, too, may justify a change in previously issued orders. Also, under certain circumstances, an increase in the cost of living can warrant an upward modification of child support. Generally, periodic increases can be provided for in the original order so that the parties do not need to make repeated court appearances each time there is a significant change in the cost of living.
How is child support collected if the person responsible for paying it moves to another state?
Under the Revised Uniform Reciprocal Enforcement of Support Act (RURESA), an order for support issued by the Family Court in one state will be enforced by the family court in another state to which the paying parent moves if certain conditions are met. Under RURESA, the custodial parent has two options for how to proceed to collect support. Under the first option, the custodial parent who receives the support must register the order for support in the county where the paying parent now lives. The family court will move to enforce the order and make the non-custodial parent pay. The paying parent can, however, go to court in his or her new home state and argue that the child support amount should be modified, and if he or she is successful, the child's home-state court may be stuck with the reduced amount.
Alternatively, the custodial parent can go to the family court in his or her home state to commence an action to enforce the support award issued by that court. The enforcement agency that serves that court will notify the payer's new home state so that enforcement actions, such as wage withholding, can be implemented there. Under this method, the payer cannot get the award modified in his or her new home state. The new state's court can, however, determine that the amount of child support ordered is too high and require that only a portion of it be paid, but the original state does not have to accept the reduced amount. The payer remains liable for the full amount as originally ordered, and if he or she fails to pay it, the original state may issue an arrest warrant, and the delinquency can be noted on the payer's credit report.
Under what circumstances will the court award alimony or spousal support?
The obligation of spouses to support each other does not necessarily terminate when they divorce. If the divorce will leave one spouse with very little income and the other with enough to contribute to the low-income spouse's support, the court will usually award alimony, at least temporarily.
Historically, spousal maintenance was awarded to homemaker wives, and paid by wage-earning husbands; that is no longer always the case. Now, either spouse may be awarded alimony if the other has the more substantial income and the recipient spouse's income is insufficient to support him or her at the level to which the spouses were accustomed during the marriage.
Spousal support is often awarded in cases in which one spouse has put his or her education or career on hold in order to raise the parties' children while the other continued to advance and achieve a higher income. In such cases, the alimony will often be temporary, providing income for a period of time to enable the recipient spouse to become self-supporting. This temporary, or rehabilitative, spousal support enables the recipient spouse to further his or her education, receive job training, reestablish him or herself in a former career or complete childrearing responsibilities, after which he or she can be self-sufficient. Homemaker spouses are not considered as dependent as they once were, and as a result, alimony is now often temporary, with the thought that after a period of "rehabilitation" these spouses can become self-supporting.
Permanent alimony is still an option for some parties, but will not be considered by the court unless the marriage has existed for a minimum of ten years and economic need is exhibited. When permanent alimony is not available because of the short term of the marriage, a rehabilitative alimony award is inapplicable, but the circumstances of the case justify some award of financial support, the court can award limited duration alimony to terminate after a specific period of time.
During the pendency of a divorce, either party may ask the court for an award of temporary support or alimony. An award of this pendente lite alimony will enable the parties to maintain the "status quo" between them, until a full analysis of their financial affairs may be completed. Pendente lite alimony awards are only temporary. These awards of alimony can be increased or decreased via settlement, or at trial if necessary.
There are thirteen statutory factors for a court to assess if alimony is awarded, the length of alimony, and the amount of alimony. They are:
- 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 pay-outs on equitable distribution 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; and
- 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.
- Any other factors which the court may deem relevant
The last factor on the list allows a judge to consider any other relevant information to assist the court in fashioning a fair alimony award. Moreover, even thought the alimony statute identifies four types of alimony, judges may carve out alimony awards that do not necessarily fit neatly into any one category.
What kinds of assets are divided in a divorce?
The division of marital property has changed in recent years to give each spouse an equitable share of property upon divorce. One change that displays this trend is the recognition of the homemaker spouse's contributions to the growth of marital property. All property and debt owned by either of the parties and acquired during the marriage is subject to equitable distribution. Marital property generally includes most of the property the couple acquired during the marriage. Examples may be the marital home, second home, furnishings and appliances, artwork, vehicles, financial assets, investments, retirement accounts and privately owned businesses. Marital debt may consist of mortgages, car loans, credit card balances, and school loans.
The value of intangible property may also be divided. Examples of divisible intangible property include the value of a patent on an invention, the value of the celebrity status of a spouse's name, the goodwill value of a business owned by one spouse and the value of a professional degree earned by one spouse. The value of these intangible assets will generally only be divided when both spouses made a substantial contribution to that value, either directly or indirectly.
The factors used in dividing assets and debts are as follows:
- 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 his or her career goals.
It is not always easy for a spouse to identify all of the assets that may be available for valuation and division. That party’s lawyer will help with this issue through discovery. During discovery the parties' attorneys trade documents that disclose each party's income, assets and liabilities. In addition, each spouse is sometimes deposed by the other spouse's attorney. At the deposition, the questioned spouse will respond, under oath, to questions designed to gather all necessary information about his or her assets and income. If necessary, additional parties may be deposed, such as employers, bankers or business partners.
What terms should be included in a separation agreement?
Although separation agreements are not required by the court for a couple to be “legally separated,” a separation agreement may be advisable when the parties have very different financial situations, such as when one spouse is the wage earner and the other is a homemaker. A formal separation agreement can help ensure that all family members' needs will be met.
The terms of such separation agreements vary, but the following items are usually addressed:
- The spouses' right to live separately
- Custody of the children
- A visitation schedule
- Child support
- Alimony or spousal support
- The children's expenses
- Property and debt division
- Insurance
- Income taxes
What documents should I bring for my first meeting with my divorce attorney?
At a minimum, you should bring your three most recent paystubs from your employer along with three from your spouse’s employer, income tax returns for the last three to five years, any recent bank and/or retirement account statements, as well as any prior documents filed with the court or issued by a judge, such as pleadings, motions, orders, and restraining orders.
What if I don’t have all that information before I meet with my divorce attorney?
While it is helpful for me to have the information and documents available at the initial consultation so that I can provide you with more specific responses to your questions, it is not necessary for you to bring all of the information to an initial consultation. It can be obtained later through the discovery process.
How long does it take to get a divorce in New Jersey?
The length of time it takes to get a divorce depends upon the issues and the reasonableness of the parties and attorneys. More complex issues, such as a custody dispute, or evaluation and distribution of privately-owned businesses can extend the time needed to complete a divorce action. What is important is that all of the issues present in your divorce matter are handled thoroughly and properly, but without wasting your time or money. The Best Practices in the State of New Jersey indicates that it should not exceed one year form the date of the filing of at Complaint for Divorce until the issuance of a Final Judgment of Divorce, but both attorneys and judges recognize that this may not always be possible. Some divorce matters resolve in only a few months while others can exceed the one year cap if there are complex custody issues, businesses are involved, significant or foreign discovery is needed, or there are other involved issues that need to be addressed.
Can I be forced to attend mediation?
Private mediation is a process that requires both parties to willingly attend. If you are not interested in participating, you are not required to go even if your spouse tries to force you to attend a session. However, if you proceed through the court system and are unable to resolve your case at certain intervals, the court mandates that you and your spouse attend certain mediation sessions depending on the specific issues in your case. Custody mediation occurs with a court mediator if you have not settled your custody and visitation issues shortly after filing the initial Complaint and Counterclaim. Economic mediation is also court mandated if you have not yet resolved your case after the Early Settlement Panel Program. Mediation provides a confidential and secure environment where you can state your positions and receive non-binding recommendations. In instances where a Restraining Order is in effect, you cannot participate in mediation, including court-mandated mediation.
Can I change my name at the time of divorce? Must I?
When your divorce is finalized, you will have the opportunity to resume your premarital surname. If you indicate that you want to use your premarital surname, you will be asked a few questions in court such as whether your intention of resuming your former surname is for the purpose of defrauding creditors or avoiding criminal prosecution or bankruptcy. The judge will include your desired last name on your Judgment of Divorce. The official gold seal Final Judgment of Divorce will serve as your authorization to make changes to many of your documents such as your driver’s license and Social Security card. However, no one can force you to resume your premarital surname, including your ex-spouse.
