How divorce and legal separation are handled in New Jersey
If you are thinking of ending your marriage, you'll want to start by deciding whether to get a separation, annulment, or divorce, From there you'll want to consider everything from the filing process to alimony and child custody.
Should you get a separation, annulment, or divorce?Some couples start off with a trial separation. In NJ this can be done formally through a legal action called "separation from bed and board." Some people do this for religious reasons, but never discuss the matter formally with their clergy. It is important to realize that in some incidents a faith community will permit divorce, and if it also important to know that some legal rights are not protected if you are separated, but not legally divorced.
An annulment can be done by a religious body or by a civil court. Many people think an annulment procedure will save them from the costs of a formal divorce, but there are very limited reasons in NJ for allowing a civil annulment, and no! the children of such annulments are NOT illegitimate.
Most family lawyers will tell you if the marriage is dead, go through the formality of a divorce. One reason is that a married partner can ruin you financially if there are no orders in place on how marital assets and debts are to be handled.
How to file for divorceDivorce is handled in family court which is a part of the equity courts in NJ (judge only). Juries are only involved when there is a charge of physical attack and the court decides to permit a jury to hear the case. This is very rare. A divorce can be for cause (adultery, abandonment, cruelty) or more recently in NJ by no fault ("irreconcilable differences"). A petition for divorce is filed by one party, served on the other, and the other responds with an answer.
Should you hire a lawyer?This is not necessary if the two of you have no mutual assets such as a home and no children. The court will provide you with a pro se divorce kit. Remember the court can give you the papers and tell you who gets them and the time frame. They cannot give you legal advice.
When the court suggests you see a lawyer, this is not a command to hire one, and most family lawyers will be willing to hear you out for a consultation without costs.
If you do have assets and children, I strongly recommended you both hire a lawyer. Too often a couple try to do a divorce without a lawyer and wind up in serious difficulty. One of the most common approaches for those without a lawyer is to negotiate child support, and both sides often forget that the child support is a right of the child NOT the custodial parent and cannot be bargained away.
What to do while waiting (Pendente lite)The court is very concerned that certain things remain in place while the couple are waiting for the divorce. In the past too often one partner would walk out on the other and leave the children without money or support.
Now a divorcing couple CANNOT 1) end life insurance, 2) end health insurance 3) stop payments for rent and/or mortgage. An application is made to the court to make certain that these financial needs remain in place until they are sorted out at the end.
Continuation on the Medical InsuranceNJ permits a legal separation called "divorce from bed and board." Normally the couple remain married, but lived separately. There is a written agreement as to support, child custody etc. Neither is free to remarry with this limited divorce.
This type of divorce is becoming more frequent more recently since such a separated spouse can still remain on the medical plan of the other spouse. A fully divorced couple can have the children remain on the medical plan, but not the former spouse. So a bed and board divorce can appeal to a couple where one member is insured, and the other is not and needs continual health care.
Most divorced couples find out that alimony and/or COBRA payments rarely cover all of the medical expenses for the uninsured spouse.
Mediation and/or Early Settlement PanelMediation and Early Settlement Panels are ways to cut down on time and costs. While many times one party or another may not like what the mediator is saying or the ESP, they often can predict with great accuracy what will happen in court, and so if they are listened to, it can save a lot of time and money.
What to expect at the final hearingRarely is there a trial, so most of the time the court just has a final hearing. The couple present the court with a joint property settlement agreement which sets out not only what is done with finances,but also what will be done with the children. Usually the judge wants to place on the record that both parties have agreed to the terms. In some limited cases, the judge will proceed with one party missing.
Dividing assets in NJNJ is not a community property state. It does not divide marital assets 50-50, but according to "equitable distribution," i.e., what a judge determines is fair and just. This may mean the attachment of one party's pension. In NJ if there are minor children, the court often does not allow the sale of the house, but lets the custodial parent remain there until the children are emancipated unless the financial problems of the couple require a sale.
Alimony and child custody lawsChild support is based on the needs of the child(ren) and the ability of the parent to pay. NJ has support guidelines, and experienced mediators and/or family lawyers can plan out the payment schedule. Payments can be made directly to the custodial parent or through probation.
Alimony in NJ is not always certain. Depending on certain factors it can be temporary, rehabilitative (until the person develops job skills) or permanent.
In NJ parents can have joint legal custody, which means both make decisions on the education and health care of the children. One can also have joint residential custody, but the court wants one parent to have primary residential custody. That parent receives the child support and the other pays it. The non custodial parent has visitation rights (also called parenting time).
Considerations during remarriageA divorce permits either party to remarry. Remarriage DOES NOT change any of the terms of the property settlement agreement in regards to child care. It may end alimony if the property settlement agreement says it does. The income of the stepparent cannot be accessed for payment of child support.
Remarriage to a rich partner DOES NOT mean a change of circumstances meriting an increase or decrease in child support. If there is a motion for reconsideration of the terms of support, because of a remarriage, the income and/or assets of the new partner may be considered as reducing the expenses of the non custodial parent, and therefore altering the amount due in child support.
This is also true if a new child is born to the remarried parent BUT this is not automatic; it all must be done by proper application to the court, and most people find the changes are minimal.
Special Problems after a DivorceThe non custodial parent may refuse to pay child support or other expenses such as medical, educational or recreational costs. One parent will believe the expenses are reasonable and the other might not. There can be interference with visitation time. One parent can block communication, such as by phone or by e mail.
There is a severe problem also called parental alienation syndrome where the "alienating" parent takes extreme measures to have the child(ren) dislike and separate from the targeted parent.
There can also be emotional, financial and educational abuse and or neglect of the child(ren). Often these issues require a return to court and the filing of a notice of motion to enforce litigant's rights (have the court insist the original marital settlement agreement be obeyed). In certain cases prolonged abuse and or neglect can lead to a change in residential custody.