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Divorce

If you are considering divorcing your spouse, or believe your spouse may be considering divorcing you, it would be wise to consult with a divorce attorney. Most people are not aware of the laws in the State of New Jersey as it relates to divorce. Many people obtain their knowledge through the internet, through friends and family that have been through a divorce, or even more dangerously, through television and movies. Consulting with a divorce attorney can get you the answers you need to important questions while protecting your personal and financial interests.

For example, many people have held off on filing for divorce because they were under the impression that they had to first separate from their spouse for a certain period of time. Other people have remained in the same household as their spouse for the sole reason that they did not want to be charged with abandonment. Neither concept holds true in New Jersey. Likewise, when a marriage gets stormy, idle threats are often made from one spouse to the other regarding the children, money, assets, etc. which can cause emotional strain. Consulting with an attorney can help set your mind at ease by obtaining answers to questions regarding these very important issues.

The Law Office of Ronald H. Carlin offers a free consultation, either in person, or via telephone. If you are experiencing marital difficulty, call for a free consultation. There is no commitment to hire the firm and at the conclusion of the consultation you will feel armed with knowledge regarding the divorce process including what you can expect regarding custody, division of assets, payment or receipt of support and other issues.

For more information regarding the divorce process, please review the alimony, child support, custody and equitable distribution links on this website.

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Child Custody

It goes without saying that the most important goal of a divorce is to ensure that the children's best interests are protected. The best way to do that is for the parties to agree on a custody and visitation plan that will ensure both parents have access to their children while still maintaining stability in the children's lives.

In New Jersey there are two types of custody, those being, physical custody and legal custody.

In most cases, one parent will be considered the Parent of Primary Residence, and the other parent will be the Parent of Alternate Residence. In other words, the children's main dwelling will be with one parent, who will have "physical custody" subject to the "parenting time" of the other parent.

The other type of custody is “legal custody.” The parent that has "legal custody" is the parent that is charged with making the major decisions affecting a child such as decisions related to their health, education, safety and overall welfare. Barring unusual circumstances, courts encourage parents to share "joint legal custody" so that both parents have an equal say in the major decisions affecting their children, regardless which parent the child actually resides with.

While every case is different, the vast majority of cases that involve children are able to be resolved without the need for court intervention. In other words, the parents are able to come to an agreement with regard to custody and parenting time without a trial. That agreement is usually placed in a court order and becomes legally binding on both parties. The Court has a great deal of discretion on how they can enforce an order for custody or parenting time. Noncompliance with such an order can lead to monetary sanctions, make up time with the children, loss of one party’s driver's license, and even incarceration. In other words, it is not wise to disobey an order for custody or visitation. If for some reason you believe that an order for custody or visitation needs to be modified, the burden is on the person seeking the modification to file the appropriate application with the court requesting that the Order be modified due to a change in circumstances.

If parents are unable to come to an agreement on the issue of physical custody, it may be necessary to have a custody trial. In doing so, the Court is obligated to consider various factors which are part of the New Jersey Custody statute in coming to a decision. Those factors are

  1. the parents' ability to agree, communicate and cooperate in matters relating to the child;
  2. the parents' willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse;
  3. the interaction and relationship of the child with its parents and siblings;
  4. the history of domestic violence, if any;
  5. the safety of the child and the safety of either parent from physical abuse by the other parent;
  6. the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision;
  7. the needs of the child;
  8. the stability of the home environment offered;
  9. the quality and continuity of the child's education;
  10. the fitness of the parents;
  11. the geographical proximity of the parents' homes;
  12. the extent and quality of the time spent with the child prior to or subsequent to the separation;
  13. the parents' employment responsibilities; and the age and number of the children.

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Parenting Time

Parenting time is the time that the non-custodial parent has with his or her children. It is often asked whether the general rule is that the non-custodial parent has the children every other weekend. While that may have been common in the past, it is by no means the rule of thumb anymore. A non-custodial parent’s time with their children will depend on many factors including work schedules, distance between the parent’s homes and of course, the ages and schedules of the children. What may work for the parties and children when a child is four, will not necessarily work when that child is twelve.

While it is common for parents to alternate weekends, non-custodial parents can also seek time with their children during the week, either for a dinner visit or an overnight, as well as extended time with the children during holidays and the summer.

Obviously when parents divorce, neither parent will see the children as much as they did when they still resided together. Coming up with the right parenting time schedule will ensure that both parties have significant access to their children and ensure that a child’s relationship with both of his or her parents remains close even after a divorce.

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Alimony

Alimony is commonly one of the more difficult issues to resolve during a divorce case because there is no specific formula for calculating same like there is with child support. Rather, the New Jersey legislature has crafted various factors that a court must consider (see below) when determining if a party is entitled to receive alimony.

There are two main parts of an alimony award: the amount and the duration, both of which are determined after an analysis of the statutory factors.

While all factors must be considered, the most consideration is usually given to the length of the marriage, the age of the parties, and the earning ability of both parties.

The issue of alimony becomes more complex when the primary breadwinner is self employed. In those instances, it is common for an accountant to conduct a cash flow analysis of the business to assist the parties in determining what the true income of the business owner is.

Once alimony is established, it is usually paid for either a set number of years (limited duration alimony) or on a permanent basis (permanent alimony). Courts also have the discretion to award rehabilitative alimony, which is usually for a short duration while the alimony recipient rehabilitates their earning potential. In addition, Courts can award reimbursement alimony, which is usually awarded in cases where one spouse assisted the other spouse in furthering their education and skills such as to become a lawyer or a doctor. Most alimony cases are either permanent or limited duration in nature.

Alimony will terminate upon the death of either party, or at the conclusion of the set duration if it is limited duration alimony. Permanent alimony in theory is paid forever, but the payor can seek to modify or terminate same based upon a permanent and substantial change in circumstances. For example, a payor of permanent alimony can seek to modify same if he or she retires in good faith at or near age 65.

If a recipient of alimony remarries, alimony will terminate. If the recipient cohabits with another, which means he or she is living with a significant other without the benefit of marriage, the payor is entitled to seek to reduce or terminate same. The issue then becomes what is the economic benefit that the alimony recipient is receiving from his or her significant other and a hearing is usually held to determine same.

The statutory alimony factors are:

  • Extent of earning capacity of each party
  • The supported spouse’s marketable skills
  • Extent of supported spouse’s present or future earning capacity that has been diminished by the time devoted to domestic responsibilities
  • Extent of supported spouse’s contribution to the supporting spouse’s education, training, and career development
  • The supporting spouse’s ability to pay
  • Standard of living during the marriage
  • Debts and assets of each party
  • Duration of the marriage
  • Ability of the supporting spouse’s to obtain employment without adversely affecting the interests of children in her/his custody
  • The spouses age and health
  • Documented evidence of domestic violence
  • Tax consequences
  • Balance of hardships of both spouses
  • Criminal conviction of a spouse shall be used to reduce or eliminate spousal support
  • Any other just and equitable considerations

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Child Support

Under New Jersey Law, the non-custodial parent will have a child support obligation to the custodial parent. Unlike alimony, child support is calculated pursuant to a computer program called the child support guidelines. In coming to a child support figure, the guidelines take into account the following:

1. both parties’ incomes;

2. whether a party is paying or receiving alimony;

3. whether there is work related day care costs;

4. the cost to cover the children on either party’s health insurance plan;

5. the amount of overnights the non-custodial parent enjoys;

There are two types of child support guidelines worksheets: Sole parenting and Shared parenting.

If the noncustodial parent has less than 104 overnights per year, child support is calculated using a sole parenting worksheet. If the noncustodial parent has 104 or more overnights, a shared parenting worksheet is used.

Child support can be paid either directly to the custodial parent, or through the probation department, which ensures an accurate accounting of payments.

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Equitable Distribution of Assets

Many people ask if New Jersey is a “community property” or “50-50” state. The answer is no. Rather, New Jersey law provides for an “equitable distribution” of marital assets at the time of a divorce. While parties often agree to split their assets on a 50-50 basis, there are actually twenty separate factors that a court is required to consider if the issue is to be decided at trial. The factors are addressed below.

Usually, the main asset to be divided is the marital home. The marital home is usually distributed by one party buying out the other party’s share, or the house is sold.

This issue becomes a bit more complex when there are children involved. It is often the case that the custodial parent would like to remain in the marital home for the children’s sake, but cannot necessarily afford to purchase the other spouse’s share due to a lack of funds. A question that often arises is whether one party can remain in the marital home for a certain number of years without actually buying out the other party’s share to ensure the children are not uprooted from their home, school and friends.

The answer usually depends on the age of the children. For example, if the parties have two kids that are 16 and 17 years old, a court is more likely to “tie up” one party’s share of the equity to allow the children to stay in the marital home until they graduate high school. If the children are younger, that option is less likely.

Another equitable distribution issue is the division of retirement accounts. The general rule with regard to retirement accounts is that any account that was accumulated during the marriage is a marital asset subject to equitable distribution. For example, if one party has been contributing to a 401(k) for ten years, and has been married for 5 of those years, their spouse is entitled to an equitable distribution of what accumulated for the past five years, with the first five years of contribution prior to the marriage being exempt.

While the above represents some general rules as it relates to equitable distribution, if a case cannot be resolved and must be decided by the Court, it is the statutory factors that must be considered to determine what is “equitable.” Those factors are:

  1. The duration of the marriage
  2. The age of the parties
  3. The physical health of the parties
  4. The emotional health of the parties
  5. The income brought to the marriage by each party
  6. The property brought to the marriage by each party
  7. The standard of living established during the marriage
  8. Any written agreement made by the parties before or during the marriage concerning an arrangement of property distribution
  9. The economic circumstances of each party at the time the division of property becomes effective
  10. The income of each party
  11. The earning capacity of each party, including:
    1. educational background;
    2. Training;
    3. employment skills;
    4. work experience;
    5. length of absence from the job market;
    6. custodial responsibilities for children;
    7. the time and expense necessary to acquire sufficient education or training to enable the party to become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage
  12. The contribution by each party to the education, training or earning power of the other
  13. The contribution of each party to the acquisition, dissipation, preservation, depreciation or appreciation in the amount or value of the marital property
  14. The contribution of a party as a homemaker
  15. The tax consequences of the proposed distribution to each party
  16. The present value of the property
  17. 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
  18. The debts and liabilities of the parties
  19. 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
  20. Any other factors which the court may deem relevant

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Domestic Violence

In 1991, the New Jersey legislature enacted the New Jersey Prevention of Domestic Violence Act. That act allows a victim of Domestic Violence to obtain a restraining Order against the other party if they have committed one or more acts of Domestic Violence. The various acts that are prohibited under the Domestic Violence statute are:

  1. Homicide
  2. Terroristic Threats
  3. Criminal Restraint
  4. Criminal Sexual Contact
  5. Burglary
  6. Harassment
  7. Assault
  8. Kidnapping
  9. False Imprisonment
  10. Lewdness
  11. Criminal Mischief
  12. Criminal Trespass
  13. Stalking

The ability to obtain a restraining Order against a perpetrator of Domestic Violence is not limited to spouses. Under the New Jersey statute, a person can seek a Domestic Violence Restraining Order against another if that person is 18 years or older, or is an emancipated minor, and has been subjected to Domestic Violence by

  1. their spouse;
  2. their former spouse;
  3. a present or former household member; or
  4. someone that the person had a dating relationship with

To obtain a temporary restraining Order, the victim must go to the county court house in the county where they reside during business hours (8:30 a.m. – 4:30 p.m.). If a victim wants to obtain a restraining order during non-business hours, a weekend, or a holiday, the victim may go to their local police department. Their application for a restraining Order will then be heard via telephone by the on-call Municipal Judge in that town.

If a temporary restraining Order is granted, the Defendant will be served with same and will be prohibited from having any contact with the victim. The Court can also make temporary decisions regarding support and custody pending the “final hearing.” Since temporary restraining orders are granted on an ex parte basis, which means without notice to the Defendant, the law provides that the final hearing must be scheduled within ten days of the date the temporary restraining order is granted. A final hearing is synonymous with a trial. At the trial, both parties will be present and will be entitled to present testimony, evidence and witnesses. The sole question for the Court to decide at a final hearing is whether the Defendant committed an act of domestic violence against the Plaintiff. If the Court finds that Domestic Violence did not occur, the case will be dismissed. If the Court finds that Domestic Violence did occur, a Final Restraining Order will be entered. Unlike other states, in New Jersey, Final Restraining Orders do not dissolve after a set period of time.

If a court grants a final restraining order, in addition to Ordering that the Defendant have no contact with the victim, the Court may also Order any of the following:

  • Prohibition from returning to scene of violence.
  • Prohibition from future acts of domestic violence.
  • Prohibition from locations where victim (and others) are employed or reside.
  • Prohibition from any oral, written, personal or other form of contact with victim and others.
  • Prohibition from making or causing anyone else to make harassing communications to victim and others.
  • Prohibition from stalking, following or threatening to harm, to stalk or to follow victim and others.
  • Payment of emergent monetary relief to victim and dependents.
  • Defendant may be made subject to intake monitoring of conditions and restraints.
  • Defendant may be ordered to psychiatric or other evaluations or treatment.
  • Prohibition against possession of weapons including application to purchase firearm, permit to carry firearm and firearm purchaser identification card.

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