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Divorce

Divorce Procedure

Divorces may be uncontested or contested. An uncontested divorce can be granted when the parties agree on all issues such as child custody, support and property division. It may involve the filing of papers at the courthouse and, perhaps, a brief appearance before a judge.

A contested divorce, where the parties cannot agree to terms, resembles a standard lawsuit with a trial before a judge.

In some states, mediation is part of divorce procedure for spouses who cannot agree on the terms of a divorce. Mediators are used in place of judges to resolve disputes on matters like child custody, visitation, and property settlements. You and your spouse can meet with the mediator to discuss the issues and work out an agreement acceptable to both of you. Lawyers and judges are usually not present during mediation sessions and formal legal procedures do not apply. A judge will decide the issues if you are unable to resolve them through mediation.

After the judge grants a divorce, you may have to wait a short period before remarrying. The waiting period ranges from one day to one year after the judge’s approval of the divorce depending on the state.

Divorce FAQ’s

Do my spouse and I both have to be New Jersey Residents in order for us to be divorced in New Jersey?

No. However, to file the divorce complaint and satisfy the Court's jurisdictional requirements, one of you must presently live in New Jersey and must have lived in New Jersey for at least one year prior to filing the complaint for divorce.

Can my spouse and I simply agree to divorce due to "irreconcilable differences"?

Yes. Recently added to New Jersey's divorce statute in January of 2007 is the ground of "irreconcilable differences." To meet the requirements of this new ground, the marriage must be irretrievably broken down for six or more months at the time of filing the Divorce Complaint. The legal impact of the addition of "irreconcilable differences" is that parties need not be separated to meet the requirements. Prior to adopting this new law, parties were required to live separate and apart for eighteen (18) months or allege marital fault with specificity. Since marital fault is rarely considered by the court when determining the financial aspects of the divorce, animosity amongst the parties can be minimized now that marital fault need not be alleged in print, thereby providing for a smoother divorce process. However, in the rare cases that marital fault has been "egregious", or where a party's conduct should be brought to the Court's attention for making other determinations, such as custody of the children, those specific facts should be alleged in the Complaint under one of the other available grounds for divorce.

What are the legal grounds for divorce available in New Jersey?

Although "irreconcilable differences" was recently added as a ground for divorce in New Jersey, it did not replace any of the statutory grounds previously available. Extreme mental or physical cruelty, adultery, alcoholism and/or drug addiction, imprisonment, institutionalization for mental illness, desertion, and deviant sexual conduct remain intact as fault-based grounds. Also, separation for eighteen (18) or more months is a ground that remains available without the need to allege fault.

Is there any way I can file for divorce without disclosing my financial assets?

In contested family actions, New Jersey courts require both parties to disclose their finances, assets and debts in the form of a Case Information Statement ("CIS"), which is to be filed with the Court within 20 days of the Defendant's Answer being filed. The consequence of not filing a timely CIS is dismissal of your pleading. However, parties who agree upon all issues, including custody and support of the children and the distribution of their assets and debts, are exempted from filing the CIS's.

Can I change my name at the time of divorce?

Yes, either spouse can request a name change at the time of divorce, provided this request is specifically included in his or her pleading. If the name change was not requested and, for example, a woman later decides she wants to revert to use of her maiden name after the divorce has been granted, she can do so, but it will require petitioning the Court, at another cost, whereas it would have been included at no extra cost during the divorce proceeding.

How do I know what property goes to my spouse and to me when we divorce?

New Jersey courts decide how to divide property based upon an "equitable distribution" scheme, which includes over 20 statutory factors the courts must consider. In this State, only "marital property" may be distributed. This is property that the parties acquired while they were married, in either or both parties' names. Generally, any property that was acquired by either party solely before the marriage or via gift or inheritance will be exempt from distribution.

My spouse wants to attend mediation to resolve our divorce disputes but I don't understand why I should go. Can't we just go to Court?

Although you can always proceed through litigation and you have the right to a trial, mediation can be a useful tool to resolve your divorce-related issues without the need for a trial. Many litigants recognize that litigation is expensive and that they have very little control over the outcome of a trial. The end result of litigation can be expensive fees and disappointment with the rulings. Mediation offers you the opportunity to take back control of the outcome by agreeing together on the results, rather than being told a directive. The mediator can be an attorney or other trained professional who facilitates your communications to bring you to the point of agreement, issue by issue, and on a case-by-case basis. You can agree to terms that a Court would never have the power to order because the Court is bound by the law, including statutes and prior cases. And some people find that it is less expensive to pay one mediator to assist them than to pay two attorneys (one each) to negotiate and/or try the case. However, since the mediator is a neutral third-party, he/she is not an advocate for either party and is refrained from giving legal advice. Therefore, it is always wise to have an attorney advise you of your legal rights, even when proceeding through mediation. Litigants can opt into the mediation process at any time; however, if after attending the "Matrimonial Early Settlement Panel" the case has not yet settled, the Court will direct the parties to attend economic mediation with an agreed upon mediator. The first two hours of the mediator's time is provided at no charge. A list of trained family mediators is available by County on the Court's website at: http://www.judiciary.state.nj.us/family/rosters/index.htm.

Custody related questions

I have two children and I am separated (or divorced) from the children's other parent. The children live with me and visit their other parent every other weekend. Can I move to another state with our children to pursue a job opportunity?

The answer is "maybe." First, if you acquire written permission from the other parent to relocate out of state with the children, then "yes", you may relocate. However, if you can not obtain such consent, you will need to get permission from the Court. Generally, there are several factors the Court will consider in making its determination on your request to remove the children from this State, including whether there is a good faith reason for the move and whether the move will be adverse to the children's best interests. Such requests are addressed on a case-by-case basis. The trend is to favor the moving party, unless the parties have had near equal custody roles in raising the children.

Child Support FAQ’S

I have been paying Court ordered child support for the last year. However, I recently lost my job and can't afford to keep paying the same amount of child support. Can I stop paying it?

No. The Court Order remains in place unless and until you have it modified by the Court. You may be able to have your obligation reduced or temporarily stayed, provided that you can show a "significant change in circumstances" has occurred. However, so long as you are capable of working, a Court will not likely terminate your obligation. The date on which you file the application to modify child support is the first possible date that your obligation may be modified since the Court cannot retroactively modify it prior to the date of your Court application. Therefore, if you stop paying or reduce your payments before you ask the Court to modify your obligation, you will end up owing support "arrears."

Proof of Paternity FAQ’S

The father named in my child's birth certificate is not my child's biological father. I want to change my child's certificate so that it shows the name of the true biological father. Is this possible regardless of whether I was ever married to the biological father?

Yes. You have to file an application with the court seeking to amend your child's birth certificate. There are several steps that must be taken to prove the truth of this assertion, including DNA testing of the father and child, sending notices of your application to the biological father and to the father currently named in the certificate so that they may object, and ultimately, receiving a Court Order permitting the change.

 


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