Divorce

 

An Overview

A divorce is a the legal recognition of the end of a marriage. The divorce itself is commenced when a party files a complaint for divorce and alleges one of the proper statutory causes of action for divorce. These include, but are not limited to, abandonment, adultery, and extreme cruelty. New Jersey also recognizes irreconcilable differences, otherwise known as a no-fault basis, for divorce, and provided certain criteria regarding the irreconcilable differences are satisfied. The divorce is formally obtained by the entry and filing of a Judgment of Divorce by a judge or other tribunal of competent jurisdiction over your matter. In New Jersey jurisdiction is vested in the Family Part of the Chancery Division of the county in which you or your spouse resides. When both the plaintiff and defendant have filed claims for divorce (i.e. a complaint and counterclaim), a Dual Judgment of Divorce will be entered. Functionally the legal effect of both is the same. 

 

A Judgement may or may not set forth particular terms regarding things like custody, parenting time, division of assets and/or debts and alimony. This is because the Judgment often incorporates a separate agreement (referred to as a Matrimonial Settlement Agreement or Property Settlement Agreement) covering all manner of terms worked out and agreed upon between the parties in resolution of their outstanding matrimonial issues. These agreements can be made directly between the parties, by negotiations between counsel, through mediation, through a collaborative divorce practice, or a combination of all the above. When an agreement can be reached, the terms of the agreement are usually formalized in writing and signed by the parties. This is known as an uncontested divorce.

 

If the issues cannot be resolved between the parties, the matter will ultimately be scheduled for a trial before a judge. This is called a contested divorce and at trial witnesses and other forms of evidence can be introduced in support of your or your spouse's positions on any particular issue (i.e income information for the purpose of setting child support). Sometimes the parties are unable to reach an agreement and yet, for various reasons, want to avoid their issues being decided by the court. In such instances, one alternative is for the parties to submit to arbitration. Arbitration can be essentially just like a trial, except that the ultimate decision is made by a hired neutral party (typically a family law attorney or retired former judge). Parties who resolve their matter through arbitration will still have to return to court to receive their actual Judgment of Divorce, but the court will accept the arbitration decision as resolution of all issues in lieu of a settlement agreement or decision by the court.

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The New Jersey Legislature has passed statutes that provide many of the general principles for addressing the issues in a divorce. For instance, New Jersey is an Equitable Distribution state. This means that there is no automatic equal division of assets and debts acquired during the marriage. Under this framework, it is important to understand that equitable does not necessarily mean equal. However, while there is a formula for determining child support for couples earning up to a certain amount per year, for those earning in excess of the guidelines the court has discretion to supplement the maximum guidelines recommended support figure based on various factors. And alimony is based on fourteen separate factors that must be weighed by the court. Thus key to the divorce process is the recognition that each case is highly fact sensitive. Cases that appear similar can thus have different paths to resolution, and often there is no easy answer to complicated questions of how to disentangle all the elements of a marriage.

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Alternative Dispute Resolution

Alternative dispute resolution, or ADR, is a specialized non-litigious way of resolving legal differences, which results in an uncontested divorce. It can include arbitration and mediation. In alternative dispute resolution, the parties agree to avoid formal litigation regardless of any disagreement. Instead, the parties commit to a process whereby differences are resolved through negotiation. Some benefits of the alternative dispute resolution process are that it enables you and your spouse to speed up the dissolution process in a less formal environment.

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Legal Separation

New Jersey does not recognize a legal status of separation. This is unlike some other jurisdictions, which provide an actual legal mechanism by which couples can be deemed formally separated but not yet divorced. Instead, you and your spouse can choose to live separate and apart. You can even create, with the help of an attorney, a temporary separation agreement governing conduct, use of marital resources, etc. for this period of time. Your legal status will not change, however, and you will continue to be viewed as married in the eyes of New Jersey.

 

If you are contemplating divorce, but remain uncertain about whether getting divorced is right for your situation, one option is to seek a Divorce from Bed & Board. This kind of divorce, permitted under New Jersey statute, is not an absolute divorce as it does not completely terminate the bonds of matrimony. It is akin to a formal separation. The parties may seek financial support, create custody and parenting time arrangements, and otherwise address the distribution of assets and debts. The significant drawback is that you are not permitted to remarry until your Divorce from Bed & Board is converted into an absolute divorce.

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Annulment of Marriage

If you married in New Jersey, there are a few circumstances wherein a marriage may meet the criteria for annulment. Under an annulment, marital property rules do not apply, though New Jersey courts are permitted to award alimony in appropriate cases. It is also important to consider that decisions regarding child custody and support may also be affected depending on whether the marriage ends by way of annulment or divorce.

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