Divorce

Generally, you must be a resident of the State of New Jersey for one year prior to the filing of a complaint in order to obtain a divorce in the state of New Jersey. Either spouse may obtain a divorce simply by stating in divorce papers that the two parties have experienced irreconcilable differences for the past six(6) months. In the event the irreconcilable differences grounds for divorce are not applicable, the spouse wanting the divorce must prove one of the following grounds: Adultery Willful and continued desertion for one year Extreme cruelty (defined as physical or mental cruelty that endangers the safety or health of the other spouse) Drug addiction or habitual drunkenness Continuous institutionalization for mental illness for two or more years Imprisonment for 18 months Deviant sexual behavior 18 month separation (the parties are separated and have lived in separate residences for at least 18 consecutive months)

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The legal divorce process begins when one of the spouses files a "Complaint for divorce" with the Superior Court. The other spouse is then served with the complaint and given time to respond. If the parties are in agreement about property and debt division, as well as child custody and child support matters, the divorce can be finalized without a trial at an uncontested divorce hearing. If the parties cannot reach an agreement, the court will schedule the case for a case management conference (wherein the Judge and the attorneys set forth time frames to exchange various information i.e. financial information, appraisals, forensic evaluations, etc.). Subsequently the court will schedule an early settlement hearing date for non-binding mediation. Thereafter in the event the case not been settled a trial date will be set. At any time after the Complaint has been filed, either party can request temporary assistance from the court in the form of temporary custody and spousal/child support orders, as well as orders to determine who pays what expenses on a temporary basis.

Common Questions and Answers:

Where can I get help with marital problems?

An attorney, religious leader or social agency can refer you to a marriage counselor, psychologist or special service group for advice about solving family problems. If separation or divorce cannot be avoided or is in your best interest, an attorney can guide you in the steps that are necessary to protect your rights.

What will a lawyer talk about during the first conference?

In most cases, a lawyer will discuss several topics, including the possibility of resolving your marital difficulties through counseling assisting you as a parent in meeting your children's needs throughout the divorce process the process of dissolving the marriage by divorce financial matters involving child support, alimony, real estate and personal property legal rights of the parties court procedures procedures in the lawyer's office for handling the case legal fees and court costs mediation as an alternative to litigation collaborative divorce as an alternative to litigation.

How is a divorce started?

The lawyer for the person seeking the divorce will initiate the process by filing a formal document (called a complaint) with the appropriate court (i.e. usually the county wherein the person filing the complaint resides). This complaint includes relevant information pertaining to the marriage, such as place of residency, present living arrangements, children of the marriage, previous court actions (if there are any) relating to the marriage, and the specific grounds upon which the divorce complaint is based. A copy of the complaint will be served on the receiving spouse, either by mail or in person by the sheriff, or on the spouse's attorney.

What should I do if my spouse has filed for divorce?

You should consult an attorney for advice right away. You may contest the reason claimed for the divorce as well as putting forth your own basis to procure a divorce from your spouse. You may also contest any claims relative to child custody, support, alimony, and/or property division by filing the proper papers and appearing in court. Or you may allow the case to be decided by default if you do not contest the basis for the divorce or you have no children or property, and you do not need any support. However, you will be bound by the judge's decision. Failure to follow court orders could result in jail time, fines, community service, damages and payment of the other person's legal fees. It is generally not advisable to allow a case to be decided by default without input from you. Even if you and your spouse have reached an agreement on support, alimony, property distribution, or other issues, each of you should seek a review of the agreement by your own independent attorney. Your attorney will let you know what your rights are, choices you can make and any possible consequences of actions you might take.

How long does it take to get a divorce?

The time it takes to get a divorce depends on many factors, including but not limited to the county wherein you reside, and the number of issues to which you and your spouse have previously agreed on. Your lawyer can offer some general guidance on the length of time that it may take to finalize your divorce. A general guide, however, is that if both the husband and wife have agreed on all aspects of the divorce, a final court hearing may be finalized in three or four months. In the event aspects of the case are contested, a final decision may take anywhere from eight or nine months to several years depending upon the complexity of the case and the backlog in your county of residence.

Will the court make any temporary decisions?

If it is necessary, the court can make temporary decisions concerning: custody of minor children alimony and child support who will live in the home that you and your spouse shared the sale of property to ensure payments of support and/or to protect a spouse’s equitable distribution share in the property visitation rights for the spouse who doesn’t have physical custody of the children any other temporary orders at the request of a spouse or because the judge believes it will be in the best interest of justice

What happens between the time I file my complaint for divorce and such time as my divorce is finalized?

After all papers are filed, there is usually a delay of at least several months before a judge can hear the case. During this time, the attorneys for both sides exchange information and financial documents in your case, and try to assist the parties in settling financial questions and other areas of disagreement. The husband and wife may sign a written statement agreeing to a particular division of marital property, child custody, support, alimony and other financial matters.

What are the grounds for divorce in New Jersey?

Under New Jersey law, a divorce may be granted for any of the following causes: Irreconcilable differences (six months of the inability of the parties to get along) Adultery Willful and continued desertion for 12 or more months. Either physical desertion or refusal to have sexual relations with the other spouse may establish this cause Extreme cruelty, including any physical or mental cruelty that endangers your safety or health, or which makes continued living together improper or unreasonable. The law requires, however, that no complaint for extreme cruelty can be filed with the court until at least three months after the last act of cruelty listed in the complaint. Separation, if separate and different places of living have been maintained for at least 18 consecutive months or more and there is no reasonable prospect of reconciliation Voluntarily induced addiction or habituation to a narcotic drug or habitual drunkenness for 12 or more consecutive months Imprisonment of the spouse for 18 or more consecutive months after the marriage was begun. (This cause for divorce can be charged after the defendant’s release from prison only if the husband and wife have not resumed living together after imprisonment ended.) Deviant sexual conduct voluntarily performed by the defendant without the consent of the spouse. Incompatibility is not grounds for divorce in New Jersey

What is a "no fault" divorce?

"No fault" is the term some people use to describe a divorce based on either irreconcilable differences or a period of separation wherein the parties have continued to reside in different homes for 18 or more consecutive months. If a husband and wife have experienced irreconcilable differences or lived separate and apart for 18 consecutive months, either may file for divorce. All of the other causes are fault grounds – and fault must be testified to.

Who will get custody of the children?

The welfare of minor children is of major concern to the court. Both parents must participate in a mandatory Parents’ Education Program. Property rights and welfare of the adults involved are secondary in the Court's eyes. Neither parent is entitled to custody of any children automatically. Divorcing parents may come to an agreement by themselves as to custody and parenting time arrangements. If the court decides these matters, the judge must consider many factors that will be discussed in court at a hearing. The factors include the age and sex of the children, compatibility with each parent, ability of the parent to care for the children, the personal conduct of each parent and the preference of the children, who may be interviewed by the court. Courts maintain mediation programs to assist the parties in resolving these issues for themselves. Custody orders may take several forms including sole custody; joint legal and/or joint physical custody; split custody; or any other arrangement which is in the children’s best interest.

Will there be alimony? Support?

If you and your spouse cannot reach an agreement on these issues, the judge will decide these and other issues after receiving all the evidence including the needs of the parties; the income and/or earning potential of each party; the length of the marriage and the lifestyle of the marriage. You are required to file a financial disclosure form called a Case Information Statement. Your lawyer will assist you in making sure your needs and wishes are adequately presented to the judge.

Who will get the property?

In New Jersey each spouse is entitled to a fair share of all property acquired during the marriage. If there is no agreement between you and your spouse, the judge will decide on an “equitable distribution” of property after hearing testimony. Equitable distribution is not necessarily a 50%-50% division because New Jersey laws do not establish "community property."

When is a divorce final?

When the judge issues an order declaring that a marriage has ended under the laws of New Jersey, the divorce is final, subject only to an appeal of that decision.

Are all arrangements final after the judge has made the decree?

Not necessarily. After a divorce is final, changes in some arrangements (like custody, visitation and support) may be considered if either party can show a judge that circumstances have changed substantially. Equitable distribution is usually not modifiable. A modification in support arrangements may be called for in the event there have been changed circumstances that substantially effect either the payer/payee spouse’s ability to maintain the standard of living which was reflected in the original decree. Criteria that may influence the court to order a modification might include inflation, a decrease or increase in either party’s income, illness, disability, the decision of the dependent spouse to live with another person or a new job. Be aware, though, that each individual case will be considered upon the circumstances of that case.

To learn more about how Villani & DeLuca and Vincent C. DeLuca Esq. can help you with your divorce issues in New Jersey please contact us at 732.892.9050 today. We represent families throughout New Jersey (primarily in Ocean and Monmouth County).