Frequently Asked Questions


Must divorces go to trial or be determined by a Judge?

No. Almost all divorces settle prior to trial. It is estimated by the courts that roughly 98% of all divorces settle before a trial. The N.J. Supreme Court has promulgated Rules that now require divorce attorneys to advise their clients of complimentary dispute resolution, including private divorce mediation and arbitration. The Court has also established procedures to bring the parties and their attorneys together, to aid in the settlement process. These procedures include the Matrimonial Early Settlement Panel, and Economic Mediation. Trials are very costly financially and emotionally, and therefore the courts encourage and foster settlement.

Back to Top

Does New Jersey recognize legal separations?

No. New Jersey does not recognize parties as being "legally separated." Until a Complaint for Divorce is filed you will be considered married. However, the Court will recognize negotiated and agreed-upon Separation Agreements. If you and your spouse elect to separate, and remain separated without filing for Divorce it is recommended that you enter into a written Agreement. In the event one of you were to apply for a divorce later on, the Agreement will likely be enforced by the court, resulting in substantially less legal fees, and time for the divorce action to be finalized.

Back to Top

How is alimony decided in New Jersey?

There is no "formula" or "guidelines" for determining alimony. There are four different types of alimony, e.g. Open Durational Alimony, Limited Duration Alimony, Rehabilitative Alimony, and Reimbursement Alimony, and twelve factors the court must consider in determining which type of alimony applies in a particular case. Because most divorce cases settle, matrimonial attorneys as well as mediators must analyze the facts of each case, and apply the alimony factors accordingly. The length of the marriage, the disparity of income between the parties, child rearing responsibilities during the marriage, ability to pay, the earning capacity of each party, age, education, health, assets received in the settlement, and standard of living enjoyed during the marriage, are a few of the factors applied in all alimony cases. Alimony is taxable to the receiving spouse and deductible by the paying spouse. Alimony may be modified in the future, upon a showing of substantial change of circumstances.

Back to Top

What happens when custody of the children is in dispute?

New Jersey recognizes Legal Custody and Residential Custody of children of divorce. Legal Custody, addresses the parents' rights to be involved in major decisions affecting the health education and general welfare of the children. Generally, parents will be awarded or will agree upon Joint Legal Custody. Exceptions to this rule, is Sole Legal Custody, which may be awarded when there is an active Final Restraining Order between the parents and there is evidence that the parents cannot act amicably to co-parent the children. Also, Sole Legal Custody may be appropriate, when a parent is incarcerated or there is evidence of habitual substance abuse. Residential custody addresses with whom the children will reside. Custody arrangements can be very structured or flexible based on the agreement of the parties. In a contested custody case, the standard applied by the court to determine Residential Custody is the "best interest of the child." The courts today, strive to ensure that both parents have a full and continuous relationship and parenting arrangement with the children. The Family Court will assist the parties in custody mediation. In the event the parties cannot reach an agreement as to custody, or parenting time than an expert or experts, may be engaged to assist in the custody and parenting time determination. Custody cases can be extremely costly, and emotionally draining on the parties and the children. It is always the preferred route that the parties reach an amicable custody and parenting time plan, taking into consideration the children's needs and best interests.

Back to Top

How is child support determined?

Except in extreme income cases, child support is calculated using the New Jersey Child Support Guidelines. A Sole Parenting Worksheet will be used, where one parent has less than 28% of the overnight parenting time in a year. A Shared Parenting Worksheet will be used where one parent has at least 28% of the overnight parenting time in a given year. There are exceptions to this rule, depending on the incomes of the parties, and other factors. Once the parties' incomes are determined and the amount of overnight parenting time is established for each parent, a Child Support Guidelines Worksheet is prepared to determine the appropriate level of child support. In cases where the parties' combined net weekly income exceeds the Guidelines threshold, statutory factors are applied to determine the appropriate level of child support. Child support may be modified based on a showing of changed circumstances, including a permanent increase or decrease of income. Also, child support is reviewable when a child commences college. Child support terminates upon the emancipation of the child. Emancipation is a defined term, generally occurring when the child graduates college, or in the event the child does not go on to college, after graduating high school. When child support terminates for one child, the New Jersey Child Support Guidelines must be re-run. In this regard, a child support obligation is not apportioned equally between each child. Rather the child support obligation is established for the first child, and then incremental increases in support are awarded for each additional child.

Back to Top

What does Equitable Distribution mean and how are assets and debts divided in Divorce?

New Jersey is an Equitable Distribution state, which means the distribution of assets and debts in a divorce action must be fair and reasonable based on the facts of each particular case, and applying statutory factors. As a general rule, if a couple has been married for a long period of time, the marital assets, including real estate, personal property and retirement accounts will be divided equally between them. Debts are generally allocated equally, but not necessarily, depending on the incomes of the parties, and the distribution of assets at the time of divorce. Because New Jersey is a "No Fault" state, the fault of a party (the grounds for divorce, i.e. adultery, extreme mental cruelty, irreconcilable differences) will have no bearing on the division of assets in a divorce action. The exception to this rule is where a party can prove that a spouse intentionally or fraudulently dissipated or failed to disclose an asset in contemplation of the divorce, or during the divorce action. In New Jersey, any assets which were owned prior to the marriage, and kept excluded from the marital estate, as wells as third party gifts and inheritances, if maintained in individual names, are not subject to equitable distribution.

Back to Top

Can I file for a "No Fault" divorce?

Yes. Effective January, 2007, the New Jersey Legislature added "Irreconcilable Differences" as a ground for divorce in New Jersey. To meet the requirements a party need only allege that they have experienced irreconcilable differences which has caused the breakdown of the marriage for a period of at least six months, and that there is no reasonable prospect of reconciliation. Other grounds for divorce are extreme mental cruelty, adultery, physical desertion for a period of 12 months, constructive desertion in which a party has refused to be intimate with the other for 12 months, habitual drug or alcohol use, institutionalization for 24 months, imprisonment for 18 months, deviant sexual conduct, and separation from the same residence for 18 months. Extreme cruelty is defined as any physical or mental act which either endangers the health or safety of the other spouse or makes in unreasonable to expect a person to continue to remain in the marriage.

Back to Top

How long does it take to get divorced?

The goal is for a couple to be divorced as quickly as possible. In litigated cases, the court's goal is for the parties to be divorced within one year of the filing of the Complaint for Divorce. However, parties who engage a mediator to aid in the negotiation of a settlement can be divorced in substantially less time. The fact remains that the parties themselves, whom they chose as an attorney, and their conduct throughout the divorce action, dictates how long it takes to get divorced. The more reasonable and open the parties are to negotiation, disclosure of assets and debts, and compromise, the faster they will get divorced. When a couple is unable to settle their issues, then a Judge must make the final decisions at trial. Trials can take weeks or months to conclude because of the backlog of cases in each county. A successful divorce is a divorce settlement where both parties are able to live with their settlement terms. Nobody "wins" in a divorce action, per se; however, if parties can move forward with their lives knowing that they accepted the terms of settlement as a fair and reasonable resolution of the issues, than this is a successful divorce.

Back to Top

How much do divorce actions cost?

Simply put, the cost of a divorce is dictated by the parties. When parties choose litigation as a means to divorce, each party must hire an attorney and each must pay a retainer, as well as the attorney's hourly rate, once the retainer is exhausted. If mediation is chosen, only one retainer is paid, and for the most part, the divorce action will cost substantially less. When parties are able to work together, come together in the negotiation process and reach compromises, the cost of divorce can be minimized. However, if a divorce action commences with immediate court intervention for temporary support and/or custody, or the divorce action continues with conflict, multiple court applications, or if one of the parties fails to provide financial information or documents, the divorce action can become very costly. The facts of each case and the parties' conduct throughout the divorce action will directly determine the cost of your divorce.

Back to Top

Is Mediation right for my case?

Whether you choose divorce mediation, as an alternative to litigation, is a decision you should make based on the facts of your case. If there is an active Final Restraining Order between the parties, than mediation cannot take place. Also, if you feel that you have no bargaining power in the negotiation process, or you feel that you do not have the ability to voice your opinions and positions in the negotiation process with your spouse, then mediation might not be the best process for you. However, simply because your spouse may have handled the family finances during the marriage, should not exclude you from the mediation process. A good mediator works with the clients to ensure that all assets, debts and income sources are disclosed and understood. The issues necessary for settlement are negotiated step-by-step, so that each party has a full understanding of the income, assets and debts of the marriage, and how each should be allocated between the parties in an equitable manner. When custody and parenting time are at issue, the mediator helps to guide the parties toward a fair custody and parenting time plan that serves the children's best interest. Just like divorce litigation, when financial or custody experts are needed to aid in the negotiation and settlement process, these experts will be engaged in the mediation process. Mediation is generally by far less costly then divorce litigation, and takes less time. The goal of mediation is to aid the parties in resolving their divorce or family law related conflicts in a more amicable fashion, to open up communication between the parties, to foster co-parenting arrangements, and to insulate the parties and the children from the harsh consequences of the adversarial process. Attorneys may and should be consulted in the mediation process.

Back to Top

How will the new Alimony Reform Statute affect my divorce?

On September 10, 2014 New Jersey enacted a new Alimony Reform statute N.J.S.A 2A:34-23a (the Alimony Reform Act or "Act"). Here are some common questions being raised by divorcing and divorced parties.

Q. Can I still receive Permanent Alimony?
A. No. Permanent Alimony which was applicable in marriages (generally) over 15 years was replaced by "Open Durational Alimony." Under the Act, for marriages under 20 years, the term of alimony can no longer exceed the length of the marriage. For marriages of 20 years or more, Open Durational Alimony is now applicable. However, the Act further provides for a presumption that alimony will terminate when the Payor spouse reaches his/her full age of retirement, defined as when the Payor reaches the age when he/she can commence collecting full social security benefits (generally age 67 years old). However under the Act this presumption can be overcome taking into consideration the factors set forth in the new statute.

Q. Does the Alimony Reform Act effective September 10, 2014 apply to me if I was divorced before 9/10/14?
A. Yes. The Act applies to anyone not yet divorced and parties who are divorced and who meet certain conditions and circumstances under the new Act. For example the new Act address conditions upon which alimony may be modified, terminated or suspended based on the retirement of the Payor (the supporting ex-spouse), cohabitation of the Payee (the supported ex-spouse) or loss of employment, or reduction of income of the Payor.

Q. I am approaching retirement and paying Permanent Alimony under my Property Settlement Agreement. Does the new Act address ending my alimony obligation based on retirement?
A. Yes. The Act has specific factors a judge must consider if you were divorced prior to the enactment of the Alimony Reform Act. If your former spouse will not agree to terminate or modify the alimony based on your retirement, than you must file a post-judgment motion to terminate/modify the alimony based on retirement. The court will likely hold a Plenary Hearing (trial) if the Payee disputes your "good-faith" plan for retirement. The court must then apply specific factors including factors that will apply if you were self-employed, to determine whether you have demonstrated good faith retirement. The judge after applying all relevant factors can terminate or reduce the alimony. Under the Act, it is the Payee’s burden of proof to establish that the alimony should continue, if the Payor has met his/her full age of retirement, irrespective of his/her health and assets.

Q. What if I have not reached "full retirement" age and I want or need to retire sooner?
A. Under the new Act the court must consider certain factors to determine whether retirement prior to reaching full social security retirement age is warranted. The court must consider your employment and whether your job is one where retirement before "full retirement age" is mandatory, such as NJ State Troopers, policeman, fireman and certain union positions. Also, whether you worked in a job/career where it is generally expected that the employee would retire earlier. Also, the court may consider the expectations of the parties during the marriage as to the issue of earlier retirement.

Q. Are there any other provisions of the new Act that bear on the issue of retirement and alimony?
A. Yes. Prior to the enactment of the Act, it was the Payor’s burden to prove that they could no longer afford to pay the alimony award. Under the new Act, the judge is required to consider whether the Payee should have and had the ability to save for her/his own retirement. In making a determination, the judge must consider that neither party has a greater right to live a lifestyle reasonably comparable to lifestyle enjoyed during the marriage. Also, the judge can no longer use his/her discretion to deny the Payor’s application. Rather the court must make written findings of fact and law to support the decision.

Q. It appears as though I will have to hire an attorney and incur substantial legal fees to end my alimony obligation based on retirement. Is there any other way to address this matter?
A. Yes. You can notify your ex-spouse in writing that you are retiring and you would like to attend mediation to address the matter. Your ex-spouse may agree to mediate the issue as it will be costly for both parties to hire attorneys and go to court. An experienced matrimonial mediator can handle the matter and submit a Consent Order to the Court if an agreement is reached in mediation. If your ex-spouse will not respond or agree to attend mediation, then you will be required to file a post-judgment motion to terminate alimony and hiring an attorney is advisable.

Q. How will Family Court judges apply the new Act?
A.   Statutes enacted in the area of family law must be applied by judges. Of course, judges to some degree must interpret the intent of the statutory factors and apply the factors based on the facts and proofs presented. The 2014 Alimony Reform Act is a sea-change in alimony public policy in New Jersey and it is anticipated that the Act will change how the family courts make decisions. Until the enactment of reform on September 10th, the public policy was for Permanent Alimony to be considered first.  Permanent Alimony is defined as alimony for life or until there is a material change of circumstance. After enactment of alimony reform, the public policy changed completely. Permanent alimony was eliminated, and two limits on the duration of alimony were introduced, (1) no longer than the duration of the marriage, and (2) an end at retirement. This is a major change. Alimony went from a lifetime obligation to a durational obligation. The definition of duration is a period of specific length. Of course we have to wait and see how Judges interpret the Act.

Q. The new Act address if I have a change of circumstances such as loss of employment, reduction in income or temporary or permanent illness affecting my ability to continue to pay my alimony obligation?
A. Yes. The new Act specifically addresses these circumstances. For example, before the Act, a Payor of alimony’s motion to modify alimony based on one of these circumstances could be denied by the judge (under existing case law) because enough time had not passed. Under the new statute the judge is required to review the request to modify the alimony after 90 days has passed from the time the "change of circumstances" has occurred. The judge must also consider specific factors in determining whether a defined change of circumstances has occurred and whether a temporary or permanent modification of the alimony obligation is warranted give the facts and proofs presented. Again, the judge must make specific findings of facts and conclusions explaining their decision. Again, the parties can and should attend mediation if viable to address whether modification is appropriate, to avoid very costly legal fees.

Q. What happens if my ex-spouse for whom I am paying alimony enters into a cohabitation or mutually supportive relationship with another person?
A. The Act significantly changes the prior case law on cohabitation and its impact on alimony. The new Act specifically defines cohabitation based on statutory factors. What is significant is that the Judge can find cohabitation exists even if the supported, Payee spouse and the cohabitant do not live together permanently. Also, of even greater significance, if the judge finds cohabitation exists the court can only terminate or suspend the alimony. Under prior case law the judge had the discretion to modify the alimony eve after finding cohabitation. In determining whether to terminate or suspend the alimony the court must consider the length of the cohabitation relationship.

CALL OR EMAIL FAITH A. ULLMANN & ASSOCIATES, LLC, TO SCHEDULE A FREE CONSULTATION TO DISCUSS YOUR MATTER.

Back to Top

To learn more about how we can be of service to you in resolving your family law matter, contact us today.

Contact the Firm

Bold labels are required.

Contact Information
disclaimer.

The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.

close

Privacy Policy

Office Location

Newton Office
97 Main Street
Newton, NJ 07860

Map & Directions

Hackettstown Office
116 High Street
Hackettstown, NJ 07840

Map & Directions