Frequently Asked Questions About Divorce
Whether you are going through a divorce or dealing with another family law matter, you likely have a number of questions pertaining to the legal process, the extent of your legal rights, and the available courses of action. In an effort to better serve our community, Diamond & Diamond, P.A., has compiled a list of answers to some of the most common questions that our clients ask. Please read on for helpful information or contact our firm to learn more about your legal options.
How will our property be divided?
- In the event of divorce, property is divided by the court through a process called “equitable distribution.” Equitable distribution in New Jersey requires that your marital property be divided fairly between the two of you, though not necessarily evenly.
- Section 2A:34-23.1 of N.J.S.A. provides the criteria a court must consider during this equitable distribution process, which includes the following factors:
- (a) Duration of the marriage;
- (b) Age and physical and emotional health of the parties;
- (c) Income or property brought to the marriage by each party;
- (d) Standard of living established during the marriage;
- (e) Any written agreement made by the parties before or during the marriage concerning an arrangement of property distribution (ie – Pre-nuptial Agreement);
- (f) Economic circumstances of each party at the time the division of property becomes effective;
- (g) Income and earning capacity of each party;
- (h) Contribution by each party to the education, training, or earning power of the other;
- (i) 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;
- (j) Tax consequences of the proposed distribution to each party;
- (k) Present value of the property;
- (l) Need of a parent who has physical custody of a child to own or occupy the marital residence and to use the household effects;
- (m) Debts and liabilities of the parties;
- (n) 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;
- (o) Extent to which a party deferred achieving their career goals; and
- (p) Any other factors which the court may deem relevant.
How is alimony calculated?
- A spouse may need financial support during or after divorce. Alimony is meant to provide them the funds they need to maintain their lifestyle.
- Section 2A:34-23(b) of N.J.S.A provides 14 factors that a New Jersey Court must consider when determing how much alimony a spouse should receive, which are as follows:
- (1) Actual need and ability of the parties to pay;
- (2) Duration of the marriage;
- (3) Age, physical and emotional health of the parties;
- (4) Standard of living established in the marriage and the likelihood that each party can maintain a reasonably comparable standard of living, with neither party having a greater entitlement to that standard of living than the other;
- (5) Earning capacities, educational levels, vocational skills, and employability of the parties;
- (6) Length of absences from the job market of the party seeking the maintenance;
- (7) Parental responsibilities for the children;
- (8) Time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, the availability of the training and employment, and the opportunity for future acquisitions of capital assets and income;
- (9) History of the financial or non-financial contributions to the marriage by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities;
- (10) Equitable distribution of property ordered and any payouts on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair;
- (11) Income available to either party through investment of any assets held by that party;
- (12) Tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a non-taxable payment;
- (13) Nature, amount, and length of pendente lite support paid, if any; and
- (14) Any other factors which the court may deem relevant.
Will I receive child custody?
- There are two forms of child custody:
- (1) Physical Custody, where the child spends their time; and
- (2) Legal Custody, who has legal decision-making power for the child.
- When determining both types of custody awards, New Jersey courts are most concered with what is in the best interests of the child, and a parent will not be deemed “unfit” unless their conduct has a “substantial adverse effect on the child.”
- Section 9:2-4 of N.J.S.A. provides relevant criteria a New Jersey court must consider when determining custody of a child, which include the following:
- The parents’ ability to agree, communicate and communicate in matters relating to the child;
- The parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse;
- The interaction and relationship of the child with their parents and siblings;
- The history of domestic violence, if any;
- The safety of the child and the safety of either parent from physical abuse by the other parent;
- The preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision;
- The needs of the child;
- The stability of the home environment offered;
- The quality and continuity of the child’s education;
- The fitness of the parents;
- The geographical proximity of the parents’ homes’;
- The extent and quality of the time spent with the child prior to or subsequent to the separation;
- The parents’ employment responsibilities; and
- The age and number of the children.
What determines child support?
- Rule 5:6A of the New Jersey Court Rules requires that the Child Support Guidelines set forth in Appendix IX to these Rules must be applied in all applications to establish or modify child support.
- The Child Support Guidelines establish the child support amount assumed to be the correct support amount, and must be applied unless “a party proves to the court that circumstances exist that make a guidelines-based award inappropriate in a specific case.” See N.J. Court Rules, Appendix IX-A(2).
- Parties may present the court with their own child support award that differs from the guidelines-based award, but the proposed child support award must provide a worksheet that states both “the reason for the deviation and the amount of the award calculated under the child support guidelines.” N.J. Court Rule 5:6A.
Can I stop my ex-spouse from seeing the kids if they stop paying child support?
- No. Child custody and child support are completely different issues. If your ex-spouse stops providing financial support for your child, you will need to resolve the problem in court.
How long will the divorce take?
- No divorce in New Jersey should take more than 12 months, as mandated by the courts. If you and your spouse agree to a no-fault divorce, it can be over in less than two months. Extremely complex divorce cases can sometimes take over a year. These are extenuating circumstances, however.
More Information Is Available
If you still have questions, call 973-671-1354 for a free initial divorce consultation, or contact us by email at [email protected]. Our lawyers will get you answers and provide legal services where you need them.