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.
Back to Top
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.
Back to Top
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.
Back to Top
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.
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.
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.
Back to Top
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.
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.
Back to Top
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 combined income exceeds $187,200, the Court must apply the guidelines and then add in additional expenses using the following factors:
i. The needs of the child;
ii. Standard of living and economic circumstances of each parent;
iii. All sources of income and assets available to each parent
iv. Earning ability of each parent, including educational background, training, employment skills, work experience, custodial responsibility for children including the cost of providing childcare and the length of time and cost of each parent to obtain training or experience for appropriate employment;
v. Need and capacity of the child for education, including higher education;
vi. Age and health of the child and the parties;
vii. Income, assets and earning ability of the child;
viii. Responsibility of the parents for the court-ordered support of others;
x. Reasonable debts and liabilities of each child and parent; and,
x. Any other factors the Court may deem relevant.
c. The Court may modify child support based on the best interests of the child and in light of the following factors:
i. Equitable distribution of property;
ii. Income taxes;
iii. Fixed direct payments (i.e. mortgage payment);
iv. Unreimbursed medical/dental expenses for either parent;
v. Educational expenses for the children (including private school and college);
vi. Educational expenses for either parent to improve earning capacity
vii. Single Family units having more than six children;
viii. Cases involving the voluntary placement of children in foster care;
ix. Special needs of gifted or disabled children;
x. Ages of the children;
xi. Other costs of raising children such as reduced income, decreased career opportunities, loss of time to shop economically, or loss of savings
xii. Extraordinarily high income of the child;
xiii. Substantiated financial obligations for elder care that existed before the filing of the child support action;
xiv. The tax advantages of paying for a child’s health insurance
Back to Top
XX. What is an abatement of child support?
a. A non-custodial parent may request an abatement of child support if the parent spends an extended period of time with the child.
XXI. How will the Court calculate child support if we each have custody of one or more of the children?
a. The Court will calculate child support for each parent and the child in his or her custody the parent with the higher child support figure will pay the difference to the other parent.
XXII. Does the Court consider the other children I am supporting with calculating child support?
a. If the parent has children with another person there may be an adjustment to the guidelines. In order to receive what is known as the “other dependent deduction”, the parent must provide the income of the other parent.
b. If the party has a Court ordered child support obligation the party must provide a copy of the Court Order and will receive credit for the support payments made to the other children.
XXIII. What is an imputation of income?
a. A Court will impute to someone income when the Court determines that the parent is without just cause either voluntarily underemployed or unemployed.
b. A Court will impute income based on the potential employment and earning capacity using the parent’s work history, occupational qualifications, educational background and job opportunities. A Court may also use the party’s prior income or may use the prevailing wage based on the Department of Labor wage compendium. Finally, a Court may impute to a party earning minimum wage on a full time basis.
c. The case of Arribi v. Arribi states that a person may not choose to take a job that pays less or remain unemployed if that person is qualified to earn a greater income. For example, a neurosurgeon may not choose to become a clerk at a convenience store and expect that his obligation will be reduced. Rather, a Court will most likely impute to that neurosurgeon a salary commensurate with his training.
XXIV. Child Support for children over the age of 18
a. Generally child support is to be calculated pursuant to the guidelines for children who are less then 18 years old. However, if a child is 18 and older and still attending high school or post-secondary school and lives at home, the child support guidelines may continue to be used.
b. If the child lives away at college, it is inappropriate to calculate child support based on the guidelines.
XXV. How can I change my child’s name?
a. The Court will look at whether the name change is in the child’s best interests.
XXVI. What is a Probation Department Best Interest’s Evaluation?
a. An investigation done by the County Probation Office which renders a report as to the fitness and character of the parents, the economic condition of the family, the financial ability of the party to pay support, and will personally visit both parties homes to ascertain the appropriate child safety precautions in the home, the number of household members and their relationship to the children, and criminal record checks for the parents.
XXVII. What is the role of a Guardian Ad Litem?
a. A Court may appoint a guardian ad litem when the Court believes the children’s best interests are not being adequately representing in the matter. A guardian ad litem represents the best interests of the children in a matter. The guardian ad litem files a written report with the Court as to the issues of custody and parenting time. The guardian ad litem acts as an independent fact finder for the Court. A guardian ad litem may be an attorney, social worker or therapist. Note that the parties are responsible for the cost of the guardian ad litem.
XXVIII. What is the role of an attorney appointed for the children?
a. In some cases, the Court may appoint an attorney to represent the children in a matter. Unlike a guardian ad litem, the attorney acts as an advocate for the children and participates as would an attorney for either parent.
XXIX. What does a Parenting Coordinator do?
a. Courts will use parenting coordinators in high conflict cases where the parties cannot agree or follow a particular parenting time schedule. The parenting coordinator will mediate issues between the parties. The parties are responsible for the parenting coordinator’s costs.
Back to Top
XXX. How and when will a Court modify my child support obligation post-judgment?
a. In order to modify support the moving party must show substantial and permanent changed circumstances. Meaning that there is a reason why the paying parent will never earn the same income. Specifically, unemployment is not considered enough to modify support as the Court considers unemployment situations to be temporary.
b. In addition, failure to comply with a parenting time schedule may result in modification should said non-compliance continue over a period.
XXXI. What is the Uniform Interstate Family Support Act (UIFSA)?
a. It applies to all proceedings to establish, enforce, or modify a support order.
b. In order to establish jurisdiction for an initial Order there must be personal jurisdiction which is accomplished in the following ways:
i. The parent is personally served with a summons or notice within New Jersey;
ii. The parent submits to New Jersey’s jurisdiction by consent, entering a general appearance or by filing a responsive document. If you respond to a motion or Complaint for support you are effectively submitting to personal jurisdiction;
iii. The parent resided with the child in New Jersey;
iv. The parent resided in New Jersey and provided prenatal expenses or support for the child;
v. The parent engaged in sexual intercourse in New Jersey and the child may have been conceived by that act of intercourse; or
vi. There is any other basis consistent with the New Jersey Constitution and the United States Constitution for the exercise of personal jurisdiction.
c. UIFSA establishes an Order for continuing exclusive jurisdiction of the state in which the initial order is entered provided that at least one parent continues to remain in the state.
XXXII. When is my child emancipated?
a. The age of majority in New Jersey is eighteen (18). However, this does not necessarily result in a child being emancipated.
b. In order to show that a child is emancipated the moving party must show that the child has “moved beyond the sphere of influence exercised by a parent and has obtained an independent status of his or her own.” Newburgh v. Arrigo
XXXIII. Do I have to contribute to the cost of college?
a. New Jersey is one of the few states that can compel parents to contribute to the cost of college. If the child has ability and inclination to attend college, parents are generally required to contribute.
b. In determining whether a parent must contribute and how much must be contributed the Court will consider the following factors:
i. Whether the parent, if still living with the child, would have contributed toward the cost of the requested higher education;
ii. The effect of the background, values and goals of the parent on the reasonableness of the expectation of the child for higher education;
iii. The amount of contribution sought by the child for the cost of higher education;
iv. The ability of the parent to pay;
v. The relationship of the requested contribution to the kind of school or course of study sought by the child;
vi. The financial resources of both parents;
vii. The commitment to and aptitude of the child for the requested education;
viii. The financial resources of the child, including assets owned individually or held in custodianship or trust;
ix. The ability of the child to earn income during the school year or on vacation;
x. The availability of financial aid in the form of college grants and loans;
xi. The child’s relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parent advice;
xii. The relationship of the education requested to any prior raining an to the overall long-range goals of the child
c. College contribution may effect the amount of child support as long as the child does not live at home year round. If the child lives at home and attends school the child support guidelines generally continue to apply.
Back to Top
XXXIV. What are the types of Alimony?
a. Permanent – generally awarded when a spouse is unable to become self supporting.
b. Limited Duration – alimony that is awarded for a “limited duration” allowing the parties to learn the skills to be self supporting.
c. Rehabilitative – is awarded based on a plan in which the dependent spouse shows the steps to be taken, time frame, and period in which the dependent spouse expects to become employed.
d. Reimbursement – is appropriate when one party supported the other through an advanced education, anticipating that the dependent spouse would have enjoyed the earning spouse’s higher income.
XXXV. What factors are used in determining the amount and duration of alimony?
a. The actual need and ability of the other party to pay;
b. The length of the marriage;
c. The age and health of the parties;
d. The standard of living and the likelihood that each party can maintain the same or similar standard of living;
e. The earning capacities, educational levels, vocational skills, and employability of the parties;
f. The length of absence from the job market;
g. The parents responsibilities for the children;
h. The time and expense necessary to acquire sufficient education or training to enable the party to obtain employment;
i. The history of the financial contributions to the marriage by each party, including the giving up of personal careers to raise a family or to permit the other to obtain education or training;
j. The equitable distribution of property ordered and any payouts on equitable distribution, directly or indirectly, out of current income;
k. The income available to either party through investment of assets;
l. The tax treatment and consequences to both parties of an alimony award;
m. Any other factors which the Court may deem relevant.
Back to Top
XXXVI. When can my alimony obligation terminate?
a. Permanent and limited duration alimony terminates upon the dependent’s spouse’s remarriage.
b. Cohabitation
i. The paying spouse must show that the dependent spouse’s cohabitation has an economic impact on the dependent spouse.
ii. When the paying spouse shows cohabitation, the dependent spouse must show that the cohabitation does not result in an economic benefit.
XXXVII. What is palimony?
a. A claim for support for people that have cohabitated together for a period of time provided that there is a written or implied agreement that the cohabitant would support the other. The recent case of Levine v. Konvitz, states that a claim for palimony requires the following factors: cohabitation, marriage type relationships, promise of support for life, and valid consideration. Unlike alimony, palimony is not taxable as income to the recipient and tax deductible to the payor.
XXXVIII. What is Equitable Distribution?
a. The division of property acquired during a marriage at the time of divorce. The following factors are considered in equitable distribution:
i. The duration of the marriage;
ii. The age and health of the parties;
iii. The income or property brought to the marriage by each party;
iv. The standard of living established during the marriage;
v. Any written agreement made by the parties before or during the marriage concerning an arrangement of property distribution;
vi. The economic circumstances of each party at the time the division of property becomes effective;
vii. The income and earning capacity of each party;
viii. The contribution by each party to the education, training, or earning power of the other;
ix. The contribution of each party to the acquisition, dissipation, preservation, depreciation or appreciation in the amount or value of the marital property, as well as the contribution of a party as a homemaker;
x. The tax consequences of the proposed distribution to each party;
xi. The present value of the property;
xii. The need of a parent who has physical custody of a child to own or occupy the marital residence and to use or own the household effects;
xiii. The debts and liabilities of the parties;
xiv. The need for creation, now or in the future, of a trust fund to secure reasonably foreseeable medical or educational costs for a spouse or children;
xv. The extent to which a party deferred achieving their career goals; and
xvi. Any other factor which the Court will deem relevant.
b. Transfers of property from one spouse to another during the marriage or incident for divorce is not taxable, rather it is treated as a gift.
Back to Top
XXXIX. What property is included when awarding equitable distribution?
a. Property that is acquired during the marriage, regardless of in which party’s name the property is held. This includes real property, personal property, bank accounts, and retirement assets.
XL. What property is excluded from equitable distribution?
a. Premarital assets, including those assets that can be traced back to a premarital contribution and not purchased “in contemplation” of marriage;
b. Inheritances received by one party;
c. Gifts given to only one party.
d. Note that generally once these things are commingled, (i.e. deposited into a joint bank account) they may lose their exempt status.
XLI. When we are getting divorce, can I remain in the marital home?
a. Generally, Courts will compel the sale of the home with each party receiving his and her share of the proceeds from the sale. When there are children involved ages 3 to 5, Courts will generally order the sale because children at that age can handle change better than older children and have not yet started school. With regard to high school age children, Courts may permit the custodial parent to remain in the home prior to graduation. For children between the ages of 5 and high school age, Courts will generally wait until a logical point (graduation from elementary school to middle school) to permit a move so that it is least detrimental to the best interests of the children.
XLII. How are assets valued when determining equitable distribution?
a. Period of accumulation of assets ends the date of the filing of the Complaint for Divorce. Generally homes can be valued either by a Comparative Market Analysis or by a real estate appraiser. Retirement assets are valued from the date of the marriage through the date of the Complaint for divorce. IRAs, Keough plans, and 401(k)s can be valued based on the account balances at the time of the Complaint for Divorce. Pensions on the other hand, are more difficult to value given the fact that a pension permits a party to receive monthly payments from the age of retirement until death, whereas a 401(k) lasts only until the principal runs out.
Back to Top
XLIII. How are assets divided in equitable distribution?
a. In determining equitable distribution the Court will:
(1) determine what assets are subject to equitable distribution (i.e. what isn’t exempt);
(2) what is the value of said assets;
(3) what percentage of each asset each party should receive.
a. QDRO stands for a Qualified Domestic Relations Order which divides retirement assets. The QDRO directs the pension plan administrator to segregate the amount or percentage of pension that is awarded to the other spouse. This results in the divorcing spouse having a vested interest in the pension and receives monthly payments from same upon the spouse’s retirement.
XLV. When is it appropriate to use an expert in my divorce case?
a. An expert can be used to render an opinion about custody, parenting time, employability, business evaluations, retirements and disability of either party. The parties may agree to use an expert, may retain separate experts, or the Court may appoint an expert. The parties are responsible for the payment of the expert fees.
a. In a divorce action pendente lite counsel fees may be awarded. This means that in cases where one spouse has a greater earning capacity the Court may make that spouse pay the other spouse’s attorney retainer. A Court may also award counsel fees at the end of a matter or on a motion. The amount of counsel fees are determined by the financial circumstances of the parties and the good or bad faith of either party.
XLVII. Premarital/Prenuptial Agreements
a. The burden of proof to set aside a premarital agreement is on the party alleging that the agreement is unenforceable. The agreement will be set aside if the party can show that:
i. The agreement was involuntary;
ii. The agreement is unconscionable at the time enforcement was sought;
iii. The party before the execution of the agreement:
(1) was not provided full and fair disclosure of the earnings, property and financial obligations of the other parparty; (2) (2) did not voluntary and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; (3) did not have, or could not have reasonably had, an adequate knowledge of the property or financial obligations of the other party; or
(4) did not consult with independent legal counsel and did not voluntarily and expressly waive, in writing, the opportunity to consult with independent legal counsel.
Back to Top
XLVIII. Does New Jersey have jurisdiction over my divorce?
a. Jurisdiction is acquired when a party is a bona fide resident of the State of New Jersey for one year. In order to have jurisdiction to determine the issues of alimony and support, the Court must have personal jurisdiction over the litigants.
b. Jurisdiction is established when one of the following is met:
i. Either party was a bona fide resident of New Jersey when the cause of action arose; and
ii. One party has continued to be a resident to the time of the commencement of the action; and
iii. One of the parties has been a resident for one year preceding the commencement of the action (with the exception of adultery); or
iv. After the cause of action arises, either party becomes and remains a resident for one year preceding the commencement of the action.
XLIX. Where is venue appropriate in my divorce case?
a. Generally, the proper venue to bring a divorce action is in the county where the plaintiff’s cause of action arose. If the plaintiff was not domiciled in the state when the cause of action arose then venue is properly laid where the defendant resides. If neither party was domiciled in New Jersey at the time the Cause of action arose, then the county where the plaintiff was domiciled when the action is commenced, or the county where the defendant is domiciled when service of process is made becomes the venue for the case.
L. What is a Case Information Statement?
a. A nine (9) page document that includes income information, monthly budget, and a list of the party’s assets and liabilities. Must be filed in all contested family actions in which there is an issue related to custody, support, alimony or equitable distribution.
a. Common in divorce actions, parties may make pendente lite applications for support, custody, property related issues, counsel fees, and discovery. Generally, testimony is not taken at motion hearings, however attorneys and litigants are permitted to request oral argument on the motion.
Back to Top
LII. What does it mean to have my support payments made through the Probation Department?
a. Generally, support payments will be made through the Probation Department if requested by one of the parties, unless the court determines that there is good cause for direct payment. Regular and consistent direct payment of child support is not good cause to permit direct payments over the request for payment through Probation. Probation will also handle the enforcement and collection of support. Support payments will be adjusted automatically based on a cost of living.
LIII. What is an Order to Show Cause?
a. This is an emergency application that permits a temporary restraint or interlocutory injunction. An Order to Show Cause is brought in cases where immediate and irreparable damage will result before notice can be served or a hearing can be heard. Generally, harm is not irreparable if money damages will offer a remedy except in circumstances of severe personal inconvenience.
LIV. What sort of discovery is permitted in divorce matters?
a. Discovery is broadly permitted in divorce actions usually conducted through interrogatories, depositions, and request for documents. Interrogatories are sets of questions regarding financial and custody related topics. A “Notice to Produce” is a request for parties to provide documentation such as deeds to home, bank account information, and credit card information.
LV. What is domestic violence?
a. Domestic violence is the occurrence of one of the following actions: homicide, assault, terroristic threats, kidnapping, criminal restraint, false imprisonment, sexual assault, criminal sexual contact, lewdness, criminal mischief, burglary, criminal trespass, harassment and stalking by a spouse, former spouse, or presently or formerly a household member, boyfriend or girlfriend, or a parent or anticipated parent of a child in common upon someone over the age of 18 or an emancipated minor.
Back to Top
LVI. What is a Temporary Restraining Order?
a. A victim who files a Complaint alleging domestic violence may file same with either the Family Division of the Superior Court or the Municipal Court when the Superior Court is not in session may obtain a Temporary Restraining Order. The Temporary Restraining Order generally will permit the victim to obtain exclusive possession of the home and prevent the defendant from returning, forbidding the defendant from possessing weapons or firearms. The Order is forwarded to law enforcement agencies to serve the defendant. In order to find domestic violence based on harassment, the Court must find a purpose to harass, a course of alarming conduct or repeated acts intended to alarm or seriously annoy another, and immediate danger to person or property. The Temporary Restraining Order remains in effect until the Final Restraining Order Hearing.
LVII. What is a Final Restraining Order?
a. After a Temporary Restraining Order is issued, a Final Restraining Order hearing is scheduled and heard ten (10) days after the issuance of a Temporary Restraining Order. At a Final Restraining Order hearing, the court will consider the following factors:
i. History of domestic violence between the parties;
ii. Existence of immediate danger to person or property;
iii. Financial circumstances of the plaintiff and the defendant;
iv. Best interests of the children.
b. A Final Restraining Order may include the following forms of relief (Note, this is not an exhaustive list):
i. Restraining the defendant from further acts of domestic violence;
ii. Exclusive possession of the marital home, when applicable;
iii. Address parenting time and custody, there is a presumption that it is in the best interests of the child to award custody to the non-abusive parent;
iv. Require the defendant to submit to a risk assessment;
v. Monetary compensation;
vi. Compel the defendant to attend anger management;
vii. Restrains the defendant from entering residence, property, school or place of employment,
viii. Restrains the defendant from using a third party to initiate contact;
ix. Require the payment of support, including child support, rent/mortgage payment, spousal support;
x. May allow the defendant to remove his or her belongings from the home, where applicable;
xi. Restraining the defendant from possessing firearms or weapons.
LVIII. How can I dissolve my Final Restraining Order?
a. The following factors from Carfagno v. Carfango must be met:
i. whether the victim consented to lift the restraining order;
ii. whether the victim fears the defendant;
iii. the nature of the relationship between the parties;
iv. the number of times that the defendant has been convicted of contempt in violation of the order;
v. whether the defendant has a continuing involvement with drug or alcohol abuse;
vi. whether the defendant has been involved with other violent acts with other persons;
vii. whether the defendant has engaged in counseling;
viii. age and health of the defendant;
ix. whether the victim is acting in good faith when opposing the defendant’s request;
x. whether another jurisdiction has entered a restraining order protecting the victim from the defendant; and
xi. Other factors deemed relevant by the Court.
Back to Top
LIX. What are the tax consequences of alimony payments?
a. Alimony is taxable as income to the receiving spouse and tax deductible to the payor spouse. In order to be treated as alimony for tax purposes the following must be met:
i. The payment is required by a Judgment of Divorce;
ii. The payment is made in cash, check or money order;
iii. The payment is not required after the death of the recipient spouse;
iv. The payor spouse and the receiving spouse are not members of the same household when the payment is made;
v. The payment is not designated as something other than alimony;
vi. The payment is not designated as child support;
vii. The payor and the payee do not file a joint tax return
b. An “alimony” payment will not be considered alimony for federal taxes purposes if any of the following are met:
i. The payment is designed as child support;
ii. The payment is made in something other than cash or equivalent;
iii. The payment represents the payee’s part of a community income;
iv. The payment is made for the upkeep of the payer’s property; or
v. The payment is not required by a Final Judgment of Divorce or pendente lite agreement or Order.
c. The parties may elect not to treat the payments as taxable.
d. Payment of Insurance Premiums on behalf of the payee may qualify as alimony if all of the following conditions are met:
i. The payments are made under the terms of the support agreement;
ii. The payee is the owner of the policy;
iii. The policy insures the payor spouse’s life; and
iv. The policy is not intended to secure future alimony payments.
e. Payments made to a third party by the payor on behalf of the payee pursuant to a Final Judgment of Divorce may qualify as alimony (i.e. payor pays the payee’s mortgage).
LX. How are stock options valued?
a. There are two ways in which stock options are valued:
i. The intrinsic method – calculated by subtracting the exercise price of the option from the fair market value of the stock.
ii. Black-Scholes Model – takes into account appreciation and depreciation of the stock and calculates the present value of the projected future benefit from the exercise of the stock option.
LXI. Under what status may I file my taxes during the pendency of a divorce action?
a. Your status (single, married filing jointly, married filing separately, head of household and surviving spouse) is determined by one’s marital status on the last day of the tax year. When filing as head of household the following requirements must be met:
i. The taxpayer is unmarried on the last day of the tax year or a married individual whose spouse was not a member of the household for the last 6 months;
ii. The taxpayer maintains, as his or her home, a household as the principal place of residence of a qualifying individual for more than one-half of the year;
iii. The taxpayer provides more than one half of the support of the qualifying individual. The qualifying individual is an unmarried child, a married child who is qualified to be claimed as a dependent, or any other relative who would qualify to be claimed as a dependent. If all the above are met, the party may qualify as head of household even if the party does not take the qualifying individual as an
LXII. Who can claim the children as dependents for tax purposes?
a. The parent having custody of the child is entitled to the dependent exemption. However, parties often agree to alternate said exemption. In order to alternate, the custodial parent may release her claim using Form 8332.
LXIII. What are Education Credits?
a. These are credits a tax payer is permitted to claim for qualified educational expenses paid during the year. The following are some examples of education credits:
(1) Hope Scholarship Credit may be claimed for the first two years of undergraduate education; and
(2) The Lifetime Learning Credit may be claimed for any post-high school education. The credits are based on payment of tuition and related expenses including books and academic fees required for enrollment.
LXIV. If our home is sold who is entitled to exclude the capital gain?
a. A taxpayer may exclude up to $250,000 if single and $500,000 if married from the sale of the principal residence. In the case of married tax payers, even if the house is only in one spouse’s name both parties qualify for the exclusion. When a home is sold because of divorce, if each spouse independently meets the required test each spouse may claim the exclusion whether or not they file joint or individual tax returns.
LXV. What is Innocent Spouse Relief?
a. Generally when couples file joint income tax returns, they are jointly and severally liable for any tax liability incurred. However, a spouse is relieved of the liability if he or she can meet the following requirements:
i. They file a joint tax return;
ii. There is an understatement of taxes that it attributable to the other spouse;
iii. It can be established that the innocent spouse did not know and had no reason to know when signing the tax return;
iv. It would be inequitable to hold the innocent spouse liable for the underpayment of tax;
v. The innocent spouse must bring the claim within two (2) years of the IRS beginning collection efforts.
LXVI. What is an Early Settlement Panel?
a. This is a mandatory settlement event. The panels are usually comprised of two attorneys who are familiar with the practices of the county. The attorneys hear both sides of the case and give their opinion as to how it should settle and what the outcome would be had the matter gone to trial.
Back to Top
LXVII. What is Economic Mediation?
a. If a matter fails to settle at Early Settlement Panel, prior to trial, the parties must attend mandatory economic mediation. An experienced lawyer volunteers two hours of his or her time, and the attorneys for both parties submit a statement related to the financial issues of the case. The mediator spends one hour reviewing the submissions and one free hour mediating.
LXVIII. What is an uncontested hearing?
a. When the parties reach a settlement and have a signed agreement, the Court will schedule a matter for an uncontested hearing and put through the divorce.
