New Jersey Family Law | NJ Divorce | Child Support | Alimony | Visitation | Child Custody | Adoptions

I. What is a Complimentary Dispute Resolution?

a. Divorce Mediation

i. For a fee that is generally divided between the parties, the divorce mediator gets both parties’ positions, obtains information and helps the parties reach their own agreement on the matter. Should mediation be successful, the mediator will draw up a “Memorandum of Understanding” memorializing the parties’ agreement. Generally speaking attorneys are used to review the Agreement and put through the divorce.

b. Divorce Arbitration

i. Differs from mediation in that a neutral third party makes a decision on the issues. Generally attorneys are involved in the arbitration process. The attorneys will define the issues to be determined by arbitrator. The parties pay the arbitrator’s fee; however, the final allocation of the arbitrator’s fees can be one of the issues submitted to the arbitrator. Arbitrations vary in formality from being very informal to being like a trial. The arbitrator will take testimony from both parties, draw conclusions, apply relevant law and will make a binding decision. Arbitration proceedings are confidential.

c. Mediation of Custody and Visitation

i. If custody and visitation are genuine issues in a case, the matter will be referred to mediation. Each courthouse in New Jersey offers free custody and parenting time mediation.

II. What is a Matrimonial Retainer Agreement?

a. This is the written fee agreement between the attorney and client, signed by the attorney and client, which is to include a statement of client’s rights and responsibilities.

III. What are the Causes of Action for Divorce?

a. Irreconcilable Differences

b. No Fault – Living separate and apart for a period of eighteen (18) months.

i. The parties must be separated for a period of at least eighteen months in separate residences and have not engaged in sexual relations with each other during the eighteen months. This is the only cause of action for divorce which requires the parties to live in separate homes.

c. Desertion

i. Must show that the parties have ceased to live as married spouses and that the desertion continues for a period of twelve (12) months at least.

d. Constructive Desertion

i. When a party willfully leaves his or her spouse due to acts of cruelty.

e. Habitual Drunkenness or Drug Habituation

i. When viewed in its entirety, the association with alcohol during that period was sufficiently persistent and substantial to undermine and destroy the basic tenets on which a marriage is founded.

f. Imprisonment

i. Imprisonment must last eighteen (18) or more months and the action for divorce cannot be brought until after the spouse is released from prison and the parties do not live together after release.

g. Institutionalization

i. For a period of twenty (20) for more consecutive months.

h. Deviant Sexual Behavior

i. Conduct that is performed voluntarily by the defendant without plaintiff’s consent to same.

i. Extreme Mental or Physical Cruelty

i. This is a subjective standard and requires the party to detail incidents of extreme cruelty, either physical or mental.

j. Adultery

i. The person with whom the parties’ spouse is having the affair must be served with the Complaint for Divorce. Gay and lesbian relationships constitute adultery.

IV. What is an Annulment?

a. Voids a marriage, as though there never was a marriage. Generally, a fraud which goes to the essentials of the marriage (i.e. parties marry because wife claims to be pregnant, it turns out that wife is never pregnant = marriage is void)

V. What is a Tevis claim?

a. Requires that a personal injury action arising between the parties must be pleaded with the Divorce Complaint. For example, if there is domestic violence and one spouse is seeking monetary damages for personal injury, the claim must be asserted as a Count in the Divorce Complaint.

VI. Wire Tapping

a. Generally, it is not a crime to record a conversation to which you are a party. However, it may be a violation of wiretapping laws to intercept the following communications: e-mail, text messages, internet conversations in chat rooms, and cellular or cordless phone. A party claiming that statute may be entitled to actual damages, punitive damages and attorney’s fees.

VII. What is “parenting time”?

a. This is another name the Courts use for visitation.

VIII. Child Custody

a. When people traditionally think of custody there are two types of custody: Legal and Physical custody

i. Legal Custody – Joint vs. Sole

1. Joint Legal Custody means that both parties must consult as to the issues of health, education and welfare of the children prior to making any decisions.

2. Sole Legal Custody means that the sole legal custodian may make the decisions, however, that parent must keep the other informed of the decisions and any issues related to health, education and welfare.

ii. Physical custody

1. Generally, one parent has primary physical custody of the children. The primary residential custodian is responsible for the day to day decision making. The non-custodial parent generally has parenting time.

b. Statutory Criteria for Custody – the factors the Court considers when awarding custody

i. The parent’s ability to agree, communicate and cooperate in matters relating to the child;

ii. The parties’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse;

iii. The interaction and relationship of the child with his or her parents and siblings;

iv. The history of domestic violence, if any;

v. The safety of the child and the safety of either parent from physical abuse of the other parent;

vi. The preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision;

vii. The needs of the child;

viii. The stability of the home environment offered;

ix. The quality and continuity of the child’s education;

x. The fitness of the parents;

xi. The geographical proximity of the parents’ homes;

xii. The extent and quality of the time spent with the child prior to or subsequent to the separation;

xiii. The parents’ employment responsibilities;

xiv. The age and number of children;

c. The Tender Years Doctrine

i. Means that custody will be awarded to the mother if the child is of tender years. This doctrine is subordinate to the best interests of the child standard.

IX. What are the remedies for failing to comply with a parenting time schedule?

a. When a parent is found to have violated a custody/parenting time Order, the court may order make up parenting time, economic sanctions, modification of the schedule, incarceration and counsel fees.

X. Removal Applications

a. A custodial parent may not remove children, who are native of New Jersey or who have lived here for five (5) years, from the state without consent of both parents or Court Order.

b. Baures v. Lewis

i. The case which controls removal of children from the state.

ii. The burden rests on the custodial parent to show that the move is:

1. being done for a good faith reason; and

2. the children will not suffer from the move.

iii. Once the custodial parent has proven these two factors, the burden shifts to the non-custodial parent to show that the move is not being made in good faith and it is not inimical to the child’s best interests.

iv. The Court considers the following factors when determine whether to permit a removal:

1. reasons given for the move;

2. reasons given by the non-custodial parent for opposing the move;

3. the history between the parties as it relates to the positions of the parties in supporting/opposing the move;

4. will the child have access to educational, health, and recreational activities at least equal to what the child enjoys in New Jersey;

5. whether there are equal or superior accommodations for children who have specific needs or talents available in the new state;

6. the ability of the parties to develop a parenting time schedule that will allow the non-custodial parent to maintain a full and continuous relationship with the child;

7. the likelihood that the custodial parent will foster the children’s relationships with the non-custodial parent once the move takes place;

8. the effect of said move on the ability of the parties to have a continuous relationship with extended families;

9. children’s preference (depending on age);

10. if a child is approaching his or her senior year in high school, a move should generally not be permitted until after graduation;

11. the ability of the non-custodial parent to move;

12. any other factor bearing on the children’s best interest.

XI. What is the Hague Convention?

a. An international treaty which governs abduction of children, which provides that children who are wrongfully removed to another country shall be promptly returned to the country of habitual residence. However, the Court in the country to which the child is moved may refuse to return the child when:

i. There is a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation in his or her country of habitual residence;

ii. The Court may take into consideration the child’s preference not to be returned if the child is of the appropriate age;

iii. The return of the child would violate fundamental principles of human rights and freedoms of the country to where the child is removed.

XII. What is the Parental Kidnapping Prevention Act?

a. The Parental Kidnapping Prevention Act (“PKPA”) is a federal statute designed to repair problems that occur between statutes under the Uniform Child Custody Jurisdiction Act (“UCCJA” which has been superceded by the UCCJEA). The main point of the PKPA is that initial jurisdiction always rests first with the home state regardless of the significant contacts. Furthermore, the PKPA created the idea of continuing jurisdiction for a state that makes an initial custody determination, has jurisdiction by state law, and in which the children and at least one of the parents is a resident.

XIII. What are my rights to visitation as a grandparent?

a. Moriarity v. Brandt - If the custodial parents object to visitation, grandparents must prove by a preponderance of the evidence that the denial of visitation would result in a harm to the child.

b. Mizrahi v. Cannon – There must be a specific identifiable harm to the child.

c. The theory behind the standard is that parents have a Constitutional right to make decisions as to care, custody and control of their children, even if that includes excluding grandparents from their child’s life.

d. Note that if you have custody as a grandparent you are entitled to receive child support from both parents.

XIV. How will the Court calculate child support?

a. The Court’s have established child support guidelines to determine support so that the child support number is the same in every county in the state. There is a rebuttable presumption that the child support figure as determined by the guidelines is to be used in setting support, meaning that the paying parent must show a reason why the child support guidelines should not be used.

b. It is New Jersey law that both parents must support their children financially. In divorce and support cases, generally this is accomplished by way of the non-custodial parent paying support to the custodial parent. The child support guideline assumes an amount that the custodial parent is paying for the children.

XV. How will the Court define income when calculating child support?

a. The Child Support Guidelines use gross income which is defined as all earned and unearned income that is recurring or will increase the income available to the recipient over an extended period of time. For example, wages, fees, tips, commission, business profit, interest and dividends, regular bonuses, rent payments, income received from a trust, overnight time, sale of investments, etc.

b. The Court will also use what is known as “in-kind” benefits, which are perks received from an employer (for example, if your company pays for housing or food) as income available to the recipient of said benefits.

c. The Court determines net income using the Child Support Guidelines and is not based on actual net income.

d. The following is not considered income for the purposes of calculating child support (Note: this is not a complete list): veteran’s benefits, workers compensation, welfare and other benefits, and life insurance proceeds.

e. Alimony payments are considered income to the recipient and are deducted from gross income of the payor.

XVI. What expenses are included in the child support obligation?

a. 38% of the child support amount is set for fixed costs, including housing utilities, furnishings and other household items; 37% is allocated for “variable costs” including transportation and food, 25% is allocated for controlled costs such as clothing, entertainment, and other expenses.

XVII. What expenses may be added to the child support obligation?

a. The following expenses may be added to the child support obligation provided that there is proof given to the Court: work related childcare, health insurance premium, predictable and recurring expenses, and predictable and recurring unreimbursed health care expenses.

XVIII. Parenting Time and Child Support

a. Child support is adjusted based on the amount of “overnights” a parent spends with the child.

b. When a parent spends 104 or more nights with the child per year, the parent is entitled to receive a credit for a shared parenting arrangement. In order to receive a shared parenting time credit the paying parent must show that there are more than two or more overnights per week and the parent has separate living accommodations maintained specifically for the child.

XIX. When may/must the Court disregard the child support guidelines?

a. If the obligor’s net income is less than 105% of the US poverty guidelines the Court may, in its discretion lower the award, however, child support must never be lower than $5 per week.

b. If the parent’s comb

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