I got married in New Jersey in 2012. Me and my Spouse are both on H1. We own a home in NJ (mortgage). We have a 3 months old baby boy. Things are not going well off late. I am planning to seek divorce. My questions are: (1) I want child custody, how can I proceed with this legally. (2) I want to keep the house. He has invested 40% in the down payment when we got the house. We make equal monthly payments. How can i pay him back his 40% and keep the home. (3) Split other assets like furniture, etc as he invested about 40% while buying things. (4) Child support in the future.
Review your situation with a family attorney who can go over factors the court considers in making custody, child support, and equitable distribution decisions. Couples can agree to return of investment but the typical buyout of a house involves calculating the equity in the house (difference between current market value and what is owed) and paying him his portion. It may be 50% or less depending on the equities involved. If the mortgage is in joint names and he does not agree to let you continue to use his credit, you would have to refinance in your own name and qualify for that loan. It will be worth the consultation fee to get a range of possible outcomes before you begin to take action. BTW many couples have problems adjusting to the pressures of a new baby in the household and changing roles to being parents. Sometimes help is available through counselling, though attempting that is not required before filing for divorce.
You need to speak to a divorce attorney to understand your rights and how to manage so that you can get as close to your objective as possible.
I agree with Ms. Ross that you should try to resolve all issues without litigation.
Mediation is a good alternative to litigation. However, it is not the only one, and it may not be the best one because each of you should get legal advice and ideally be represented by a lawyer.
In September 2015, the New Jersey Legislature passed the New Jersey Family Collaborative Law Act, which recognizes the Collaborative approach as a good alternative to litigation. For more information about Collaborative practice in New Jersey, you can go to the website for the New Jersey Collaborative Law Group (www.newjerseycollaborativelawgroup.com).
In any event, I believe that you should meet as soon as possible with a very experienced lawyer who devotes his/her entire practice to New Jersey Divorce and Family Law matters.
Go over your situation in detail with the attorney, get educated answers to your questions, and obtain expert guidance as to the best course of action.
I do not believe that you should necessarily choose a lawyer, just because he or she offers a "free consultation" in his or her office. You want to go to the best lawyer that you can--hopefully one that will take the time to talk to you personally on the phone before coming into the office--so that you can be sure that you are completely comfortable with that lawyer before you meet in person.
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(1) CUSTODY: I assume that you are currently the primary caretaker for your boy. You first need to file a complaint for divorce. Afterward, you can either agree on custody or file a motion seeking a temporary custody order. Under N.J.S.A. 9:2-3, "Unless the court determines the final custody of the minor child and unless the parties agree otherwise, the court shall determine temporary custody based upon the best interests of the child." Moreover, under N.J.S.A. 9:2-4, "[I]t is in the public policy of this State to assure minor children of frequent and continuing contact with both parents [and] ... the rights of both parents shall be equal[.]" Nevertheless, given your baby is only three months old, it is likely, but not certain, that you will at least be awarded temporary custody with some kind of visitation to your soon-to-be-ex. Whether that visitation is supervised or unsupervised is up for debate, as is when and how that visitation changes in the future.
(2) KEEPING THE HOME: The Court will generally be okay with any agreement concerning the home negotiated between you and your husband. Those agreements, however, typically have two parts: The first is buying out your ex's portion of the home. As stated by Catherine above, this typically requires calculating the difference between current market value and what is owed and paying your ex his portion (likely 50% but there is room for debate there). Since you paid 60% of the down payment and he paid 40%, then you both split monthly payments, there's a reasonably strong argument to be made that he should be refunded his initial 40% down payment and all equity resulting from monthly payments (probably not much) should be split equally thereafter. The second part is to refinance the home to get him off the mortgage. To accomplish both, you must be able to afford to buy out your husband's stake in the home and to qualify for refinancing. It is not always easy.
(3) FURNITURE: All of the assets accumulated during the marriage (such as your home and furniture) will be divided between you guys. This process is called equitable distribution. There are sixteen factors under N.J.S.A. 2A:34-23.1 that the Court must consider when deciding who should get what. Keep in mind that this generally applies only to assets acquired during the marriage; everything purchased pre-marriage should stay with the person who bought it. Once again, you are free to come to any agreement imaginable. If the Court decides the issue, everything will likely be split 50/50. You can, however, make an argument that because you put in more money up front, you should get more of the furniture (a 60/40 split perhaps), but the Court will assume that all income during the marriage was joint income and belonged to you equally anyway. So when you used that income to purchase furniture, that furniture then belongs to you both equally too.
(4) CHILD SUPPORT: Child support is a fact-sensitive issue, as are most issues in family law. Assuming that your combined net income is less than $187,200 per year, child support will be calculated under a formula known as the Child Support Guidelines. It's a mathematical calculation where you input certain information and it spits out a number that will then be ordered by the Court. There is a lot of room for argument over the proper figures to put in, however. For example, if someone is not working full-time or not working at the most profitable job they could, the Court will typically assign "imputed income," which is hypothetical income used to calculate child support whether or not it is actually being earned. There are many, many considerations here. Courts may even deviate from the Guidelines where warranted.
Unfortunately, I cannot provide you with sufficient guidance without conducting a free consultation at my office in Somerville, NJ. It's not possible to predict how a case will go from a short paragraph here on Avvo. Accordingly, I suggest you reach out to an attorney
Unless you have signed a retainer agreement with my law firm, I am not your attorney and we do not have an attorney-client relationship. Any statements here set forth general principles only; I cannot guarantee that those statements are applicable to the specific facts of your case or that a court of law will agree with those statements. It is not possible to provide sufficient legal guidance without the benefit of a free in-depth case evaluation at my office in Somerville, NJ. Unfortunately, I cannot perform a sufficient evaluation based on a paragraph or two here on Avvo.
You should really make an appointment to speak with an experienced family law attorney. Many attorney offer free consultations. There are many distinctions that could be made in what you ask that can better be understood by speaking with you. For example, you mention custody but custody is split between legal and residential custody and the law treats each one differently. Since both parents have a constitutionally protected rights to the child, in New Jersey there will likely be joint legal custody unless there is a reason such as unfitness to parent. The judge will likely grant one parent primarily residential custody given the age of the child, although a 50/50 residential custody arrangement cannot be totally ruled out because all the facts of your circumstances are not know as this time. The same applies to all the questions you pose here so the best advice is to sit down with an attorney and discuss your circumstances and options.
Please mark this answer as "Helpful" or "Best Answer" if my advice helped you. I hope you understand that the information I presented to you is based on the limited facts presented and is based on New Jersey. Also, this information does not contain any confidential information and does not create any attorney/client relationship.
You will each probably receive half of the marital assets. You will receive half of the equity in the house. You may be able to buy out his half of the equilty with a refinancing in your name alone. Apparently buying him out would require you to refinance the mortgage on the house which would leave you with approximately 20 percent of the value of the house and a mortgage on eighty percent of the value of the house, whatever that is. Can you afford to pay a mortgage based on 80 percent of the value of the house.
In any event online consultations can only give a few glimmers of the divorce issues. You need to hire an attorney and get a more well based opinion.
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