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Frequently Asked Family Law Questions

Q. What are the grounds for divorce?

In New Jersey, there are several "fault" grounds and one "no fault" ground. With regard to the fault grounds, there are nine, which are adultery, desertion, extreme cruelty, separation, drug addiction, habitual drunkenness, institutionalization, imprisonment and deviant sexual conduct. There is also the no fault ground, which is living separate and apart for eighteen months.

Q. Will marital fault impact on my rights to a property settlement?

Generally, the Court does not take into consideration the fault of one party or the other when determining economic issues. However, there are exceptions. For example, while adultery is not a factor with regard to equitable distribution issues, it may be a factor in determining alimony. Again, this is the exception as opposed to the rule.

Q. How is child custody determined?

Unless the parties can agree, custody is determined by the "best interests of the children." In general, in New Jersey, we have now moved toward a concept of a "parent of primary residence" (PPR) and a "parent of alternate residence" (PAR), the object being that the parents in general should be joint custodians of their children, each with input into the manner in which the children are being raised with the children having a primary and alternate residence. However, this recent change in nomenclature does not change the fact that one party or the other will have the children in their home more than the other. When this is an issue, and the parties cannot agree, a study will be undertaken of each of the households and, in most cases, a neutral party will be appointed by the Court to interview the parties and perhaps the children, view the households and make recommendations to the Court.

Q. What are the different types of support that can be obtained in a divorce proceeding?

Basically there is (1) child support, which is support paid by one spouse to the other for the benefit of the children and (2) alimony, which is support paid by one spouse to the other for the maintenance of the other spouse.

Q. How is Child Support calculated?

In New Jersey, child support is based on Child Support Guidelines in New Jersey and is basically determined by taking the income of each of the parties and also some other factors and plugging same into a set formula that has been determined by a committee of the New Jersey Supreme Court. Besides including the income of the parties, the amount of time that each party spends with their children is also a factor so that essentially, in some sense, the more time that a parent spends with the children, the lower his or her child support obligation will be. There are also several other factors that go into the equation, including the requirement to pay child care and other factors. The only way to make a definitive answer as to how much the child support obligation will be is to have all pertinent information available and then utilize the guidelines step by step in order to find the ultimate amount.

For a very rough guess at how much your child support may be, click here

Q. How is alimony calculated?

Alimony, as opposed to child support, is not as definitive and is based on a number of factors including the actual need of the party, the ability of the other party to pay, the duration of the marriage, the age, physical and emotional health of the parties, the standard of living established in the marriage, the likelihood that each party can maintain a reasonable comparable standard of living, as well as a number of other factors. The alimony statute in New Jersey was recently amended so that the court is now permitted to award not only permanent or rehabilitative alimony but also limited duration alimony and reimbursement alimony. There are no fixed "guidelines" as there are with regard to child support.

Q. Are payments for child care, medical care and other similar costs included as a part of child support?

The New Jersey Child Support Guidelines, as they now exist, take into consideration the general basic cost of a household which are (1) "fixed" shelter costs, such a mortgage/rent, utilities; (2) certain "variable" expenses, such as food and transportation; and (3) certain "controlled" expenses that would include clothing, personal care, entertainment and other personal items. However, additional amounts would be payable, such as unreimbursed medical expenses and child care. This would be above and beyond the basic child support award. Additionally, the Court has discretion to order other costs above and beyond the basic child support guideline figure, which may include private school, post-secondary school, special education and any number of other expenses that were not contemplated by the child support guidelines, if a Court is convinced that the expense is reasonable.

Q. How long must I pay or can I receive child support?

Child support concludes upon the emancipation of the child or children. What this actually means is that child support discontinues when the child is expected to be self supporting. There is no fixed time for emancipation, however. The issue is a question of fact. In general, however, emancipation may occur upon a child reaching majority, upon the child's graduation from secondary education, upon the child's entry into the armed forces, upon the child's marriage, upon the child's graduation from post secondary or even graduate school or at any other time that the Court believes the child is expected to be self-supporting.

Q. How will the marital property be distributed?

All property acquired by the parties during their marriage is subject to "equitable distribution." The purpose of equitable distribution is to achieve a fair distribution of what the parties acquired during their marriage. "Equitable" does not necessarily mean that the property will be divided one-half to each of the parties. The theory is based upon marriage as a partnership so that even if one party (usually the husband) technically acquired all of the assets through earned income, while the wife was at home and not working outside the home, the Court would still recognize that the marriage was, in fact, a partnership and but for the fact that the wife was at home keeping the household for the family, he would not have had the opportunity to earn the income for this marital partnership. Thus, the identity of the person who actually earned the money is immaterial and unless the parties can agree, the Court would distribute all property in a manner that it deems "equitable."

Q. What property is not subject to equitable distribution?

There are several categories of property not subject to distribution. The major ones include property acquired before the marriage which was maintained separately from marital assets or gratuitous transfers by way of gifts, devise or bequests from third parties.

Q. How quickly can I be divorced?

It may be said, in general, that the more cooperative the spouses are, the faster the divorce can be accomplished. However, even if the spouses are cooperative, if they have a very complicated financial situation with substantial assets, a longer time frame may be necessary in order to appraise assets and to make other determinations. Of course, if issues are contested, and if there are substantial issues at stake, the case could go on for a number of years. The converse is that if the parties are cooperative and if there are no substantial issues to be contested, same can be obtained relatively quickly.

Q. Can my spouse and I retain the same attorney?

No. Even when uncontested, it would be unethical and improper for one attorney to represent the interests of both husband and wife.

Q. How much will my divorce cost?

The more issues that need to be contested, the higher the cost will be. Thus, it is obviously in the interest of the parties to attempt to be as cooperative as possible and to work out as many issues between them as they can. Attorneys generally require the payment of a retainer that is usually determined by the amount of work that they anticipate performing in the case. All attorneys are required to have periodic invoices and payment is expected upon receipt of invoice, absent any different agreement with the attorney. In addition to attorney's fees, court filing fees and other costs must be paid by the litigant. Other costs may include deposition costs, expert fees and any number of other related fees that may be incurred that would be necessary to have the attorney prepared to address the issues in the context of the litigation.

Q. What if my spouse does not consent to the divorce?

Ultimately, the spouse does not need to consent to the divorce. Although, with regard to the fault grounds, you would need to prove the cause of action for divorce in order to obtain the divorce, (that is, for example, if your spouse committed adultery, you would need to prove this to the Court if you are claiming divorce on the grounds of adultery), once eighteen months passes, either party would be entitled to have a divorce without the consent of the other. Accordingly, the issue of consent is never an issue, unless someone wants to have the divorce in a faster period of time than eighteen months.

Q. Is there always a trial?

No. In fact, most cases are not determined by trial and are settled sometime along the way, either by the lawyers themselves or with the assistance of a mediator, or through the use of a Matrimonial Early Settlement Panel.

Q. What is the Matrimonial Early Settlement Panel?

This is a program run through the Court system that attempts to settle all issues involved in the dissolution of a marriage prior to a trial. Family Law Attorneys take turns as panelists to hear contested cases that are brought in on a designated day. The attorneys for each of the spouses will appear before the Matrimonial Early Settlement Panelists and present all issues. In most cases, the panelists will have reviewed an MESP Memo and therefore will have some familiarity with the issues. The Panelists will make their recommendations as to how they believe the issues should be resolved. This is then presented by the attorneys to their clients and assuming the recommendations (or modified recommendations) are accepted, in most cases the parties would immediately proceed to a Judge and the divorce can then be obtained on that day. If the matter does not settle at the MESP, in most cases, a trial date would be set on that day.

Q. My spouse and I are very cooperative. Is there any way that we can limit attorney fees?

Mediation in the area of divorce law has become very popular. A good mediator can help the parties that are generally cooperative come to an amicable agreement with very little attorney participation. In mediation, the mediator will assist the parties in getting all pertinent information together and help them evaluate that information. This would include, but not be limited to evaluation of assets, determination of custody issues and every other issue that needs to be determined. Once the parties are in general agreement, the mediator or a lawyer, specifically retained by the mediator for the parties, would draft either a Memorandum of Understanding or a Property Settlement/Separation Agreement. Then each party can take that agreement or memorandum to their own lawyers for review and discussion. Once approved, the Agreement can be signed and then one attorney or the other can do what is necessary in order to obtain the divorce for the parties. The role of the attorney, while important, is very limited and thus there is a substantial savings in legal fees.

Q. What are the procedures that I can expect once I retain you to represent me?

1. After I have a complete understanding of your case and the goals that you would like to reach, I will send a letter to your spouse, indicating that you have retained me as your attorney and outlining, without much detail, the issues that we believe need to be resolved. Sometimes, I will suggest possible solutions. In either case, I will encourage him/her to either call me to discuss matters or have his/her attorney call me if one has been retained.

2. Hopefully, your spouse or an attorney will contact me and we can enter into discussions in an attempt to resolve all issues. If we resolve some issues, we can enter into an Agreement which reduces the understanding of the parties to writing. If we are able to resolve all issues, we can jump to #7 below.

3. If we cannot resolve all issues, or if we can only resolve some issues, I would file a Complaint. This is the document that gets us into Court and tells the Court that you intend to pursue a Divorce. It also indicates that there are issues that may need to be resolved by the Court, if those issues cannot be resolved before a Trial. Once the Complaint is filed, I get it back from the Clerk of the Court with a Docket Number and then I will send it to the Sheriff for service upon your spouse. Once served, your spouse will have thirty-five days to file an Answer and possibly a Counterclaim for Divorce. In either case, that will start the Court's bureaucratic process. It essentially puts you "in line", waiting for the Court to get to your case.

4. While you are "waiting in line", the Court expects us to continue to negotiate with the other side to attempt to resolve all issues. If we do, we can jump to #7 below. If we cannot, there will be an exchange of documents, including income information, information concerning all of your assets (sole assets and joint assets), appraisals may need to be prepared and any number of other actions may need to be accomplished so that both sides have sufficient information to be able to set forth their positions or to continue to negotiate a settlement.

5. If children are involved, you will be referred to Mediation to attempt to resolve a child custody (but not support) issues. Lawyers are not involved. You really want to attempt to resolve custody issues amicably. Failure to do so will require the hiring of experts, either Court appointed or each of you will hire your own. It is not unheard of for fully contested custody matters to approach $50,000 in costs and fees, if the matter goes through a full trial. When the emotional toll to all parties and the children is added onto the true "cost", it obviously makes more sense to resolve Custody issues.

6. Eventually, the Court will schedule a Matrimonial Early Settlement Panel (MESP). Most of the lawyers who are active in the practice of Family Law (including myself) are members of the Panel. Two lawyers will be asked to consider your case, on the assigned day. Prior to that day, each of the attorneys will provide a MESP Memo, which is essentially a position paper. The lawyers will meet with the panelists and discuss the case. Neither you nor your spouse will meet with the Panel, but you will be in the Courthouse on that day, waiting for me to speak with you after the Panel hears the case. Often, negotiations will continue. If we can come to an agreement, based on the MESP recommendation or based on any other agreement that we reach, then you can get divorced on that day. Whatever is agreed to would be placed upon the record, in front of a Judge, and your Divorce would almost be completed. The only thing left would be for one of the attorneys to prepare a Final Judgment of Divorce, which would include the terms that were set on the record in front of the Judge, and same would be sent to the Judge for signature. You would get a copy once it is signed. This would be the end of my active participation in your case, unless other problems come up regarding violations of the PSA.

7. [THIS STEP IS SKIPPED IF YOU GOT A DIVORCE, AS PER #6 ABOVE]. Whatever agreement has been reached must be put in writing. This is called a Property Settlement Agreement (PSA) or Separation Agreement (SA). There may be some negotiation back and forth on "dotting i's and crossing t's", but usually, this is not too difficult. Once it is signed, one of the attorneys would file a Complaint for Divorce. This is similar to #3 above, but the procedure is different because everything has been resolved. After the signing of some other documents in which the non-filing party acknowledges receipt of the Complaint and allowing a Default to be entered, the filing party and his/her attorney would go to Court on a mutually agreeable date and you would get your Divorce. The PSA would become a part of the Final Divorce Judgment and it would be as binding as if a Judge had decided all issues. This would be the end of my active participation in your case, unless other problems come up regarding violations of the PSA.

Q. Can I receive child support or alimony before I am divorced?

Yes. In fact, one does not even need to file a Divorce Complaint in order to obtain support. Instead, a Complaint is filed for "Separate Maintenance." Even in a divorce context, while the divorce is pending, support can be awarded by the filing of a Motion and then a determination by a Court on the Motion as to how much support or alimony should be paid pending a final determination of all issues.

Q. Do I need to hire an attorney to obtain a divorce?

While it is not mandatory that you hire an attorney, in most cases, it is beneficial to have an attorney represent you because issues arising out of any marriage tends to be complex. For most people, this is the only time they will have gone through a divorce. They do not know the general principals of divorce law or the procedures. It is emotionally draining and totally unknown to that person. It therefore makes sense to have an attorney who has experience to guide you through this period of your life.

About the Author:

Robert A. Gleaner is is a graduate of Rutgers (B.S., 1978) and Delaware Law School (J.D., 1981). He is a member of the New Jersey and Pennsylvania Bar and the Bar of the United States Supreme Court. As a former Municipal Court Judge, in Audubon where he practices law, he has seen legal issues from both sides of the bench, an advantage which extends to all of his clients.

He can be reached at http://www.ragpc.com/ and [email protected]

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