A Comprehensive Guide to The Difficult Business of Divorce
When going through a divorce, you might feel lost and alone. The New Jersey Divorce Guide was created by Morris County Divorce Lawyer Salvatore Simeone to help people going through the divorce process address the right issues and make the process seem less daunting.
Few people plan, far in advance, to get a divorce, any more than a kid neglecting flossing is thinking about that root canal twenty years down the line. In a divorce emotions run high, uncertainties are everywhere, and the normal rhythms of a life are interrupted: everything seems to orbit around this process, the way a space pebble might orbit the outer rim of a black hole: precariously, as it sucks in time, money, and energy. Every choice seems invested with stress, and big open questions – ALIMONY – CHILD SUPPORT – CUSTODY – loom over you, offering no handhold.
Not all divorces are contentious. And some that are contentious cool off afterwards – former spouses, whether because of children, mutual friends, proximity, or just the passage of time, can return to cordiality, and even (at least in movies) something like friendship. But in most cases divorce will not work this way, and for the majority, the divorce process will be fraught, unpleasant, and stressful.
At times it will feel lonely. Awkwardness or animosity may complicate relationships with friends you share with your spouse. If you have children, you’ll be wondering what to tell them and how to answer their questions. There won’t be any outward sign to let people know what you’re going through – but at the same time, you’ll become a low-volume conversation piece at work, in your neighborhood, and among you children’s teachers, friends, and friends’ parents – who, at best, will call your situation “unfortunate” and change the subject. And worst of all, whether you were married 20 years or 20 days, you’ll be divided – by choice and soon by law – from a person who was a confidant, a source of support.
You get to choose one person to guide you through this process. An experienced New Jersey attorney dedicated to family law in all its forms can help you plan for the hurdles ahead, anticipate the complications of the process, set realistic expectations, and secure for you the best outcome possible. Before you choose one, this guide might help you answer your earliest questions, and give you some indication of what to look for and expect as you pick an attorney, make your claims, and – possibly – go to trial. With the right preparation, you can reduce the time, cost, and emotional toll of the divorce process, and start looking forward to your new life after marriage.
New Jersey Divorce Guide | FAQs
>> How much will my divorce cost me?
The cost of a divorce depends more than anything else upon the length of the divorce process, and this in turn depends more than anything else upon the two parties’ contentiousness or willingness to settle quickly. After a filing fee, a divorce could cost as little as an initial retainer – say, $5,000 on the low end – to half a million or more for complicated divorces involving hotly contested assets and children, and end up in court.
A larger firm could be less expensive. Attorneys generally bill by the hour. So do their paralegals and other staff, but their hours are less expensive. A larger firm with a professional staff of paralegals and other associates could assign some of the work in your case to them, reserving attorney time to settlement conferences, court, and any contact with the judge, saving you money.
You can also cut down on costs by minimizing contact with your attorney. That doesn’t mean failing to communicate – but you should know that even emails and phone calls count toward billable hours, so you should streamline communication as much as possible.
If you expect your divorce to be a “fight,” it’s important to assess the funds available for the fight beforehand. A frank conversation with an experienced attorney can give you an idea of what certain battles could cost, and help you come to a better understanding of what you value most.
>> How long will the divorce process take?
The courts of New Jersey work to resolve all divorces within a year. The courts have issued “best practices” to all attorneys handling family law to let them know of this expectation. With good lawyers on both sides, your divorce might be completed in well under a year. In fact, both parties could negotiate a settlement agreement – including property, child custody and support, and alimony – before even filing for divorce. If the couple file for divorce with this already signed, they might be technically through the divorce “process” in 24 or 48 hours.
To keep the process moving quickly and efficiently, you need an action plan, setting goals and anticipating hurdles. Part of this should include the amount of money you’re willing to spend on the divorce. Future complications – such as plans to move in with a new partner or move out of state with your children – need to be set down here so you and your attorney can prepare to face them.
>> What should I look for in an attorney?
You need to trust your attorney. Liking your attorney is even better. If you don’t trust your attorney, don’t communicate well, or feel uncomfortable with your attorney, the process will be even more stressful and this could negatively affect your result.
You shouldn’t choose an attorney simply for his or her reputation for battling or being “tough.” Remember that the more you fight, the more your case will cost. It will be better for you in the long run to seek someone you can trust, an honest and experienced counselor who will put your best interests first but never mislead you with unrealistic predictions or promises.
You cannot pick an attorney over the phone. Referrals are helpful, but you shouldn’t be choosing an attorney based on reputation alone, either. You need to research the field as best you can – get a feel for different attorneys from their presence on the Internet – and then schedule a consultation. If you “click,” you can move forward with that attorney. The client-attorney relationship is not like the patient-doctor relationship. You’re not looking for an expert who’s going to cut out your cancer while you sit there passively. The client-attorney relationship is more collaborative. You need to communicate freely with your lawyer – outside 9-5 business hours if necessary – trust him or her with sensitive information, and rely on his or her counsel, just as your attorney needs to trust you and take your input seriously.
>> What should I bring to my first consultation?
Attorneys will differ on this. Some might say “bring only your personality,” as the first consultation should be about getting to know each other, settling any early anxieties, and coming up with an action plan. Others would ask you to bring as much information and documentation as possible, to get started right away. This could include recent tax returns and pay stubs from both parties.
You might check an attorney’s website or ask when you call for that first consultation. Remember, though, that a consultation isn’t binding. No matter what you bring, you should go into a consultation to make an evaluation about the attorney you meet. Anything that adds stress probably isn’t a good sign.
>> Can we file a joint tax return in the year we’re getting a divorce?
This is a question for a tax specialist. Legally, if you’re divorced within the same year, you can file jointly. This could save you money. Generally speaking, though, if your relationship with your spouse is contentious, you might want to file separately.
>> Can I continue to live with my spouse during the divorce process?
It most cases, it benefits both parties – and any children in the family – if spouses continue to live together during the divorce process. Divorce is an expensive undertaking, and an additional household will put an avoidable financial strain on both parties.
In most cases, both parties want to be the physical custodian of the children, or to achieve a 50/50 custody agreement. It’s generally best for children to stay at the marital home, for the sake of stability. If one parent leaves the marital home, he or she loses control of children. The spouse who stays in the home might restrict the other spouse’s ability to see the children. Unless the spouses have come to a temporary 50/50 visitation agreement to last through the divorce process, neither should leave the home.
If one spouse leaves the marital house, he or she may return before the divorce has been finalized. This can cause contention, but until the court has divided the marital assets, both have equal right to the home. A spouse who’s been absent for more than a year will face a more difficult time returning to the house.
The exception, of course, is domestic violence. If there is any kind of abuse – including psychological abuse and intimidation or terroristic threats – the victim must notify the police, who will remove the abuser from the home. The court can issue a temporary restraining order in that situation.
>> Can I require my spouse to pay my legal fees?
If there is a serious disparity in incomes, the court may arrange for spouses to share attorney fees. Even though the court won’t have come to a decision about dividing assets or ordering alimony at this point, it will still consider all income and assets as “shared.” The court will not generally order one spouse to pay for the other’s attorney fees in entirety, but instead look to assets. The couple might immediately sell a property or take and split a savings account, and use this to pay for the divorce. When this doesn’t happen, it may still be in the best interests of the moneyed party to pay for his or her spouse’s attorney’s fees.
>> Can I get an annulment instead of a divorce?
A divorce dissolves a valid marriage. An annulment is a statement that says the marriage was never valid. New Jersey law permits annulment when:
- You or your spouse had another spouse at the time of the marriage.
- You and your spouse are related. (Although first cousins can marry in New Jersey.)
- The male in the relationship is impotent and the female did not know prior to the marriage.
- At least one spouse was not mentally competent or was under the influence of drugs or alcohol at the time of the marriage.
- The marriage was a result of duress or fraud.
- The individual requesting the annulment was under 18 years at the time of the marriage, and this individual did not ratify the marriage when he or she became of legal age.
>> Do I need a separation agreement?
Under certain circumstances you and your spouse may want to draw up and sign a separation agreement. This is not equivalent to a divorce, though it may lay the groundwork for a divorce.
The court doesn’t grant a separation agreement; rather, it is a contract between two spouses in which they agree to live separately, assign responsibility for different bills, divide assets, and decide on child custody, visitation, and support.
This can be just as complicated as a divorce. Children, real estate, debts, and taxes can cause difficulties. The document must contain particular wording if you wish it to be the basis for a divorce later on.
One year after signing the agreement, you and your spouse may file for a no-fault “conversion” divorce taking all or most of the terms of the separation agreement.
However, a separation doesn’t provide the same protection for your assets as a divorce would. Higher earners have more reason to be concerned about a separation agreement. If you’re married in 1990, sign a separation agreement in 2000, and file for divorce in 2010, the court will consider you to have had a 20 year marriage. This means alimony payments could last an additional ten years or more. If you had filed for divorce in 2000, you would, in most circumstances, have been done with alimony payments by 2010. Assets will also, in many cases, have appreciated in the time between the separation agreement and the divorce filing – or, conversely, one spouse will have spent or invested unwisely and depreciated those assets. There are many reasons to hesitate before asking for a separation agreement. If you’re considering this course of action, consult an experienced divorce attorney.
Starting the Process
The State of New Jersey recognizes two types of divorce:
Uncontested Divorce: In an uncontested divorce, one spouse files a summons and complaint for a divorce, and the judge will set a “case management order” – basically a timeline for the resolution of the divorce. The couple will appear before a judge but will not have a trial. In New Jersey, most cases don’t go to a trial – about 97% of divorces settle themselves, and this statistic isn’t far off from other states. This doesn’t mean that 97% of divorces are amicable and without argument – it just means that in most cases, people seeking a divorce negotiate outside of a trial and come to an agreement before meeting with a judge.
Contested Divorce: The contested divorce process begins the same way as the uncontested divorce process: when one spouse files a summons and complaint and a judge issues a case management order. The difference is, contested divorces go to trial. This means contested divorces are longer and costlier, and offer the parties less control over their outcome.
There is another distinction. Every state in the Union recognizes a no-fault divorce, which can be either contested or uncontested, meaning the state will impute blame to neither party. The spouse filing for the divorce does not bear any burden of proof, and the other spouse does not suffer the taint of iniquity. This also means that misconduct – such as adultery, or stealing or concealing money – will not affect decisions about alimony or child support. They may affect child custody so long as the offenses pertain directly and demonstrably to the wellbeing of the child.
>> What are grounds for divorce in New Jersey?
The state of New Jersey also recognizes different grounds, or reasons, for divorce. These are:
- Extreme mental and physical cruelty – any physical or mental cruelty which causes endangerment to safety or health or makes it improper or unreasonable for the two parties to continue residing together. You must be prepared with five to 10 examples of individual occurrences to justify a claim of extreme cruelty, and you must wait at least three months from the date of the first act of cruelty to file..
- Desertion – one spouse has left the marital home and has no contact for at least 12 months.
- Separation – if the spouses have lived apart for at least 18 consecutive months and there is no reasonable hope of reconciliation.
- Addiction or habitual drunkenness – for at least 12 consecutive months after the marriage but prior to filing for divorce.
- Institutionalization for a mental illness – for at least 24 consecutive months after the marriage but prior to filing for divorce.
- Imprisonment – for at least 18 consecutive months after the marriage but prior to filing for divorce.
- Deviant sexual behavior – by the defendant without the permission of the plaintiff.
- Irreconcilable differences – for at least six months prior to filing the parties have lived with differences they have not been able to resolve, making it inadvisable that they continue to live together.
Most divorces today are filed on the grounds of irreconcilable differences in part because it has the lowest burden of proof. Parties sometimes cite extreme cruelty in cases involving domestic violence. Again, this is probably only worth doing if it might affect the outcome of a child custody decision – but allegations or even proof of one party’s “extreme cruelty” will not affect the division of assets, alimony, etc.
>> When and where can I serve papers to start the divorce process?
New Jersey law requires a person to be a resident for one year before filing for divorce, except in cases of proven adultery. You don’t need to file for divorce in the county where you were married – you can file in the county where either spouse is living. If you file for divorce in New Jersey and your spouse is living in another state, the New Jersey court will still have jurisdiction.
>> What if I can’t locate my spouse?
You don’t need your spouse present to file for divorce. So long as you’ve made a “good faith” attempt to find your spouse, the State of New Jersey allows you to file for divorce “via publication.” This just means that you have to print a notice in your local newspaper. You could also send the summons to a last known address, using a driver’s license. There will be a default judgement. This doesn’t mean that you will get all the assets if your spouse never shows up. The judge will still try to follow the principles of equitable distribution (explained below). Also, the missing spouse can show up at the last minute for the hearing. He or she cannot present evidence, but may make statements and ask questions.
>> What are the steps in the divorce process?
Complaint: One spouse will file a summons and complaint, initiating the divorce process. The other spouse has 35 days to respond.
Case Management Conference: A judge will issue a document detailing the next steps and setting a timeline for the divorce process.
Discovery Phase: During the discovery phase both spouses exchange information about debts and assets.
Early Settlement Panel Hearing: This is a kind of mediation. Both sides will meet with two lawyers constituting the panel. They will give their statements and financial information to these two lawyers, who will try to help achieve the divorce. There is no cost to either party for this stage.
Economic Mediation: This stage is similar to the ESP hearing, except the parties will meet with only one mediator, and the session carries a cost.
Intensive Settlement Conference: This a last resort before a trial.
Trial: A judge will make the final decision on the terms of the divorce, including the division of debts and assets, child custody, child support, and alimony.
Appeal: If you are unhappy with the result of your trial, you may appeal within 45 days.
>> What is a collaborative divorce?
A collaborative divorce is a form of mediation that keeps a divorce out of the courts. That, however, is a hard-and-fast rule: at the start of a collaborative divorce, you sign a document stating that you will not file a complaint for divorce. Anything that keeps you out of the courts will keep costs down and keep more control in your hands; but in some cases, collaborative divorce simply won’t work – especially where there are substantial assets, complicated finances, or children involved.
>> Should my attorney be present during mediation?
Your attorney should be present when you go into mediation. Mediators are supposed to facilitate an agreement between two people – they can’t give legal advice to either side. That means that the more dominant partner in the marriage will probably be the more dominant partner in the mediation. Whether or not your spouse is a bully, you need your attorney there as a check against your spouse’s influence, to provide immediate legal counsel, and to ensure that the process is fair.
Division of Assets and Liabilities
Courts in New Jersey will split up all debts, assets, and liabilities from the marriage (considered from the date a couple was married to the date one filed a complaint for divorce) according to the principle of equitable distribution. “Equitable” doesn’t mean “equal,” however – it means “fair.” That means a judge might not split property 50/50. Generally a judge will take 50/50 as a starting point, but will account for the need, income, and earning potential of both spouses, the length of the marriage, and any other complicating factors.
>> What happens during the discovery process?
Spouses exchange financial information, including debts as well as assets. This might involve depositions from employers, business partners, banks, or investment houses. Each spouse could undergo an employability evaluation to determine how much he or she should be making. (For example, if one partner holds an MS and an MBA but only makes $25,000 annually, he or she would have a hard time justifying that level of earning, and his or her spouse’s attorneys would push for a division of assets calculated on a number closer to that spouse’s earning potential, rather than current income.) One side might choose to hire a CPA or forensic accountant if there is any suspicion that one spouse is hiding assets. The search can also extend to assets held overseas.
>> What assets are subject to equitable distribution?
All debts, assets, and income are subject to equitable distribution. This could include:
- The family home
- Credit card debts
- Holiday bonuses
- Other household items
- Collectibles (goods that appreciate)
- An interest in a business
- Major investments
- Retirement accounts
- Other assets such as stocks and bonds
In 1978, a New Jersey judge ruled in Dugan v. Dugan that “goodwill” comprised over 70% of the value of one man’s law practice. The divorce entitled his wife to a share of that practice, including, by extension, his “goodwill.” The Appellate Court upheld this ruling in 1983. New Jersey courts have consistently upheld and even expanded this precedent, most famously in Piscopo v. Piscopo, in which a judge ruled that “celebrity goodwill” was an asset. In this case the judge ruled and the Appellate Court confirmed that the principle of equity entitled Nancy Piscopo (née Jones) to a share of the “goodwill” her spouse Joe Piscopo had accrued over the course of a career that peaked with a Saturday Night Live stint starting in 1980.
So, “goodwill” may be divisible (especially if one party significantly aided the other in achieving that goodwill, but separate property – property one spouse acquired before the marriage – may be exempt. Debt – for example, college debt – could also be “separate.” Engagement rings and wedding bands are “gifts conditioned on marriage.” If someone receives an engagement ring but calls off the marriage, the ring goes back to the person who gave it. Once a couple is married, however, each keeps his or her wedding ring – even in the case of a divorce. The only other exception is inheritance, though you may have to take precautions to protect this. There rest is subject to equitable distribution.
>> What happens to my business?
If a business is among the assets involved in a divorce case, you will have to hire a forensic accountant to assess the value of the business. If one party owns a business and the other spouse has no role in operating it, the judge may award the spouse not working at the business around ⅓ of its value. This follows the principle of equitable distribution. If the spouse operating the business sells the business after the divorce, he or she would have to pay capital gains tax, around 20 percent. Giving the other spouse a full half of that business’s value, then, would not be fair. Even if the spouse who doesn’t own the business works there – say, as an office manager or attorney in a firm the other spouse owns – he or she will probably get less than 50 percent.
>> Will my business partners have to deal with my spouse during the divorce?
Business partners might be concerned when one is going through a divorce. Your spouse’s attorney may call in your business partners for deposition regarding the value of your business, ownership, compensation, etc. The threat to involve business partners in a divorce often triggers settlement offers from the business-owning party.
If you’re suspicious that your spouse is misrepresenting the value of a closely held business, you need to work as a team with your attorney and forensic accountant. Is it worth spending more money digging into the value of your spouse’s business, or should you take a fair settlement?
>> What will happen to my house?
In almost all cases a judge will award each spouse 50% ownership in a shared home. You have two choices, then: put the house on the market, sell it, and divide the proceeds equally; or arrange for one spouse to buy out the other’s equity. This could mean a difference of a few thousand dollars, because an interspousal purchase would avoid a realtor’s commission and other closing costs.
>> What if I purchased a home before getting married?
If one party purchased a house before marriage, and this became the marital home, a judge would divide this based on the length of the marriage. If the marriage lasted only two years, the spouse who bought the home might be entitled to 90 percent of the home’s equity. This would level out as time progresses. After 10 years, a judge would probably consider the property “comingled.”
>> Is my spouse entitled to my retirement plan?
If you were married during your entire career at a company, your spouse will be entitled to50 percent of any pension you have from that company. Often, though, one spouse will have a pension or other retirement plan started before the marriage. In this case, one spouse will be entitled to 50 percent of the worth of a pension that accumulated over the course of the marriage.
Police and firefighters are an exception. They have pensions without survivor benefits – those pensions are “gone” when the individuals holding them die. If you are married to a police officer or firefighter, you should consider taking out a life insurance policy to cover the loss of a pension, or of any alimony payments should your spouse die shortly after a divorce.
>> Is my spouse entitled to my inheritance?
If you received inheritance and kept it separate, in your own name, your spouse would be entitled to none of it during a divorce. Inherited property is separate, too, so long as you have not “commingled” it with marital property. Gifts are likewise exceptions – again, so long as they are separate from marital property and kept under only one spouse’s name.
Divorce is, by nature, adversarial. The process works when both attorneys act as ethical counselors, and both parties can be reasonable, empathetic, and willing to compromise.
Children are the victims in a divorce. A parent who seeks a divorce may be doing so with hope of providing a better home for the children in the future, but the process will be stressful, confusing, and possibly traumatic for any child in the family. Children between 10 and 16 are generally the most affected. It will be up to each party to decide what he or she wants to share with the children. Parents know their children better than anyone else – you will know what your child can handle, and when. However, both parties should try to remain amicable and respectful throughout the process. Children can sense your tension – it affects their mental and emotional wellbeing. You might feel compelled to criticize your spouse in front of the children. Remember, though, that your spouse won’t stop being your child’s parent when he or she stops being your husband or wife. Any insult or slight to a parent affects a child by extension. No child should have to hear a parent badmouthed or put down – no matter rumor, slight, curse, or damaging information is coming from.
>> How do New Jersey courts decide custody?
New Jersey family law is gender neutral: neither parent has an inherently greater claim to child custody. The courts will always decide child custody based on the child’s best interests.
In New Jersey, there are two kinds of custody, legal and physical.
Legal Custody – This establishes if one or both parents will be responsible for making decisions about the child’s health, education, and general welfare. Legal custody identifies who will be making all the major decisions around a child’s life, regardless of where that child is living.
Joint Legal Custody – New Jersey courts prefer joint legal custody. This means that even after separation, parents will have to come to an agreement about important decisions pertaining to a child’s health and upbringing. Does a child need a certain medication, or braces? Will the child attend a private or a public school? Should the child play a dangerous sport? In cases of disagreement, the parents may need to get a mediator or parent coordinator, or even go back to court.
Sole Legal Custody – The court rarely awards sole custody, but will give one parent sole responsibility for all major decisions in a child’s life if the other parent is demonstrably incapable of making those decisions, or poses some risk to the child. If one parent is clearly not putting the child’s interests first, and being a contrarian or obstructionist – refusing medications, treatments, trips, or activities – then the other parent can demonstrate this to the judge and ask for sole custody. The sole legal custodian still must inform the other parent of major life events – such as medical treatments, etc. – but doesn’t have to seek consent.
In recent years, some judges have awarded specific “domains” of legal custody to one parent or the other – for example, parents might share joint legal custody, but only one will have a say over the “domain” of healthcare, or education.
Physical Custody – This pertains to the amount of time a child will spend with either parent. The court determines the “custodial” parent based on where a child resides most often over a 14-day period. If in a 14-day period each parent has a child for seven overnights, they share joint physical custody of that child. In any other arrangement, one parent will be the “parent of primary residence,” and the other will be the “parent of alternate residence.”
When deciding on physical custody, you and your spouse must think of the child’s needs. Who will be living closer to the child’s school? Who will be home to care for the child, and when? Will your custody arrangement be 7/7, 8/6, 9/5, or 10/4? What will happen on weekends, holidays, and birthdays?
Child custody arrangements will also help to determine child support payments. For example, if both parents earn similar salaries and have a 50/50 custody arrangement, the court may not order any child support.
>> What if we can’t agree to a custody arrangement?
If you and your spouse can’t come to an agreement about parenting time during mediation, you will have to hire a psychologist or psychiatrist to perform a custody evaluation. This will be lengthy and expensive. The psychologist will interview both parties two or three times each, interview the parents and children together, interview the children separately, visit the children at the residences of the respective parents, and bring the parents and children to their office to watch them interact. In the second stage, the doctor asks each parent to offer names and contact information for five to 10 people, not directly related, who can write letters attesting to your abilities as a parent. Next, each parent will take a 500-question test, with seven “critical questions” strewn throughout; the doctor will compare your results to the results of a control group. The psychologist will cross reference the interviews, letters of reference, and test results, and offer a recommendation for a custody arrangement to the judge.
If you and your spouse can come to an agreement, you can slightly modify the doctor’s recommendation. If you’re completely unhappy with the recommendation, you have the right to hire your own doctor and undergo a second evaluation.
>> What is a parenting coordinator?
Parenting coordinators only come into the picture after parents have settled a child custody agreement. Parents would have to agree to hire a parenting coordinator, at a certain hourly rate, to be a potential check on both parties. The coordinator has more power than a mediator; if one parent is being recalcitrant or officious or disruptive – basically, not acting in the child’s best interests – the coordinator can bring that information to the court, and this could result in a change to the parenting agreement. This doesn’t mean that a parenting coordinator has any say over decisions in a child’s life. A judge, however, may have to decide in cases when both parents have reasonable claims and cannot agree.
If you’re getting divorced and have children, you’ll have to think about the knotty issues of child support while you’re working out child custody. In New Jersey, separated parents are obligated to pay child support and contribute to a child’s college education.
New Jersey law provides a set of a guidelines, or “worksheets,” to determine child support payment amounts. These are relatively simple. Your attorney can ask the following questions to predict the amount of child support payments:
- How much money does each party earn per year?
- Is either party paying or receiving alimony?
- How many children do you have?
- How many overnights does each parent spend with the children?
- Who pays for medical insurance?
- Is there a daycare expense?
The guidelines calculate a weekly payment based on these factors. One of the most important factors is parenting time, as the court assumes childcare costs increase for a parent the more time that parent spends with the child. There are significant discounts for a parent of alternate residence with 104 or more overnights a year.
In high net worth divorce cases, the guidelines do not apply. If spouses have a combined net income of $187,600 or more, they and their attorneys will have to negotiate child support payments. Here certain factors take on more weight. For example, child support payments are not tax deductible, but alimony is. Both parties might agree, then, to reduce child support but raise alimony, so that the paying spouse can take this tax break.
Parents often forget important considerations when deciding child support. If a child is six during a divorce, it’s easy to forget that ten years later he or she will be driving, and twelve years later he or she will be entering college. Few parents simply release children at age 18 and say, “you’re on your own.” Try to anticipate things like the cost of a car and car insurance, and all the extra costs related to college education, including transportation, room and board, amenities, trips to study abroad, and books.
>> How do we determine who covers college costs?
Following the New Jersey precedent of Newburgh v. Arrigo (1982), as long as a child goes to school full time, both parents have to contribute to college costs. This is the case even if the relationship between a child and parent has broken down. Moss v. Nedas (1996), however, established that if a child and parent are treating the other parent “solely as a wallet,” the court will waive that parent’s obligation to contribute to college costs. Failing grades for multiple semesters or extended leaves of absence may also be cause for ending college payments. Alimony also affects college contributions, because alimony counts as income for the receiving parent.
The court also mandates that the students exhaust scholarships, financial aid, and loans before parents’ payments kick in.
Alimony, also called spousal support, is a safeguard allowing the lower-earning spouse to remain financially stable after a divorce, and to maintain the lifestyle he or she enjoyed during the marriage. New Jersey law doesn’t mandate alimony in every case. Unlike child support, there are no guidelines for alimony payments. In any case, when one spouse requests alimony, the court will consider:
- How much each spouse currently earns, as well as prospective future earnings.
- The length of the marriage or civil union.
- The standard of living the parties have grown accustomed to during the marriage.
- Each spouse’s corresponding assets and liabilities.
- The ages of the parties, and their general physical and emotional health.
- The number of children, and amount of child care obligations.
- Any sacrifices either spouse made during the marriage (e.g. foregoing opportunities in a career to stay home and take care of the children).
- The length of time a spouse has been out of the workforce.
- Any other factors that the courts deem admissible.
New Jersey recognizes four types of alimony:
Open Durational Alimony – There is no set end date to this type of alimony. This doesn’t mean that alimony payments will never end, just that there is no set end date established at the time of the agreement. The court will look at certain “triggers” to consider ending alimony.
Limited Durational Alimony – In these cases one spouse demonstrates a clear economic need for alimony; however, the marriage was too short to permit open durational alimony. Oftentimes, the length of the alimony is tied to a specific event, such as when the supporting spouse will finish schooling, or when the spouse’s youngest child will enter school full-time, thereby allowing the supporting spouse the ability to return to the workforce and increase his or her earning abilities.
Rehabilitative Alimony – This type of alimony follows a plan of rehabilitation the requesting spouse will submit. Oftentimes, the less economically independent spouse will use this to advance his or her education or career training. This makes it easier to transition into the workforce and make a living post-divorce.
Reimbursement Alimony – Oftentimes the court will award alimony to one party to reimburse sacrifices he or she made throughout the marriage, especially if they were to support the other spouse’s pursuit of higher education, or career advancement.
An experienced attorney is invaluable when navigating difficult alimony questions. Whether you’re concerned about the fairness of your alimony payments, are wondering how alimony can affect child support and other aspects of the divorce process, or want to know about the tax implications of alimony, contact Salvatore A. Simeone, an experienced Divorce Lawyer in NJ.