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New Jersey Divorce Law - a Primer

                        New Jersey Divorce Law - A Primer
Donald S. Waskover, Esq.

                                  What Law Applies to a Divorce Case

In the United States, each state has the authority to make laws regulating marriage, divorce and civil annulments. As a result, the laws governing divorce vary from state to state. The determination of which state’s laws apply to a divorce case are based upon the residence of the parties. The authority of a court to decide a divorce case and grant a divorce is based upon the court having jurisdiction. All 50 of the United States require at least one of the parties to a divorce case to be a resident of their state for a certain period of time before they can be divorced by the courts of that state.

In New Jersey, the law requires either the husband or the wife to be a resident of New Jersey for at least 12 months prior to filing a complaint for divorce. This residence gives the court the authority (jurisdiction) to grant a divorce.

The issue of whether a court also has the authority to decide the other issues - custody of children, parenting time (also known as visitation), equitable distribution of property, alimony and child support, responsibility for attorney’s and expert’s fees - requires the other interested parties (spouse and/or children) to also be subject to the court’s jurisdiction by way of residence in the state, property located within the state or other significant contacts with the state. It is possible to have the courts of one state grant a divorce and have the other issues decided by the courts in a different state.

                        Source of New Jersey Divorce Law

New Jersey divorce laws are found in New Jersey statutes, New Jersey court rules, New Jersey administrative directives and in decisions of the courts of the State of New Jersey. Federal statutes and case law can also control certain aspects of New Jersey divorce law and must be considered in appropriate circumstances. For example, federal bankruptcy laws can have an impact upon financial decisions in divorce cases, federal tax laws can have an impact upon alimony, child support and equitable distribution decisions, and even the United States Constitution can be implicated in divorce cases such as when the rights of a parent’s authority over their children is considered.

                                Overview of New Jersey Divorce Issues

In order to legally end a marriage, a Court must enter a Judgement of Divorce. The other "Divorce Issues" that may need to be resolved are:

a. Equitable Distribution of Property,

b. Alimony Claims,

c. Custody of and Parenting time with minor children,

d. Child Support for unemancipated children,

e. Allocation of Attorney and expert fees and costs.

There are also non-divorce claims between spouses that may need to be resolved in the divorce case.

        Causes of Action - Grounds for Divorce in New Jersey

In order to be divorced, your circumstances must be included in one of the nine grounds for divorce set forth in New Jersey statutes. The grounds for divorce are:

a. Adultery;

b. Willful and continued desertion for the term of 12 or more months, which may be established by satisfactory proof that the parties have ceased to cohabit as man and wife;

c. Extreme cruelty, which is defined as including any physical or mental cruelty which endangers the safety or health of the plaintiff or makes it improper or unreasonable to expect the plaintiff to continue to cohabit with the defendant; provided that no complaint for divorce shall be filed until after 3 months from the date of the last act of cruelty complained of in the complaint, but this provision shall not be held to apply to any counterclaim;

d. Separation, provided that the husband and wife have lived separate and apart in different habitations for a period of at least 18 or more consecutive months and there is no reasonable prospect of reconciliation; provided, further that after the 18-month period there shall be a presumption that there is no reasonable prospect of reconciliation;

e. Voluntarily induced addiction or habituation to any narcotic drug as defined in the New Jersey Controlled Dangerous Substances Act, P.L.1970, c. 226 or habitual drunkenness for a period of 12 or more consecutive months subsequent to marriage and next preceding the filing of the complaint;

f. Institutionalization for mental illness for a period of 24 or more consecutive months subsequent to marriage and next preceding the filing of the complaint;

g. Imprisonment of the defendant for 18 or more consecutive months after marriage, provided that where the action is not commenced until after the defendant's release, the parties have not resumed cohabitation following such imprisonment;

h. Deviant sexual conduct voluntarily performed by the defendant without the consent of the plaintiff.

i. Irreconcilable Differences which have caused the breakdown of the marriage for a period of six months and make it appear that the marriage should be dissolved and that there is no reasonable prospect of reconciliation.

The fact that the grounds for divorce selected may be considered fault grounds, generally, does not make them important in any of the decisions with regard to the other issues in the divorce. Fault is not considered in determining the equitable distribution of property or child support. Fault is only considered in conjunction with alimony claims if it is a very serious fault which shocks the conscience. Additionally, fault is not considered in conjunction with custody and visitation decisions unless the fault effects the best interest of the children.

The conduct of a spouse can give rise to additional claims against them for injury and damages under tort grounds. These claims must be included in the divorce case.

Equitable Distribution of Property

New Jersey law provides that, upon divorce, a court will equitably distribute marital assets and liabilities. The state statute lists 16 factors which a court is to consider in deciding equitable distribution of property. These factors are:

a .The duration of the marriage;

b .The age and physical and emotional health of the parties;

c. The income or property brought to the marriage by each party;

d. The standard of living established during the marriage;

e. Any written agreement made by the parties before or during the marriage concerning an arrangement of property distribution;

f. The economic circumstances of each party at the time the division of property becomes effective;

g. The income and earning capacity of each party, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children, and 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;

h. The contribution by each party to the education, training or earning power of the other;

i. The contribution of each party to the acquisition, dissipation, preservation, depreciation or appreciation in the amount or value of the marital property, as well as the contribution of a party as a homemaker;

j. The tax consequences of the proposed distribution to each party;

k .The present value of the property;

l. 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;

m. The debts and liabilities of the parties;

n. 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;

o. The extent to which a party deferred achieving their career goals; and

p. Any other factors which the court may deem relevant.

The statute also states that there is a rebuttable presumption that each party made a substantial financial or nonfinancial contribution to the acquisition of income and property while the party was married.

The bottom line is that a court is instructed to fairly (equitably) split up (distribute) both the property and debts of the marriage. Judges are granted great discretion to determine what is a fair split-up of marital property and debts. The law views marriage as a partnership. This does not mean that the court will automatically divide up the property and debts 50/50, although this is the result in many cases. All of the factors are supposed to be considered in determining what is a fair split-up. New Jersey divorces are heard in a special part of the court called the Chancery Division. One of the guiding principals of this division is to do that which is fair.

In order to determine equitable distribution, the first step is to identify the properties of the parties, be they individually owned, jointly owned with the spouse or others or beneficially owned. Each of the properties so identified must then be classified as being either subject to equitable distribution or exempt from equitable distribution. It is the burden of the spouse claiming an asset is not subject to equitable distribution to prove that it is not. Property acquired by either or both of the parties during the course of the marriage is considered property subject to equitable distribution. Property that is acquired by either or both of the parties in contemplation of the marriage is also usually considered property subject to equitable distribution. Property which was individually owned prior to the marriage and which has continued to be individually owned during the marriage and not comingled with marital assets, is considered exempt from equitable distribution. The increase in value of such property, however, may be included in marital property in certain circumstances. Property which is received by one of the spouses as a gift (not including interspousal gifts) or inheritance solely to them and maintained by them as their individual property is also not subject to equitable distribution. Some property may be partially included in equitable distribution and partially exempt. The law with regard to these issues is very fact sensitive.

Once the property has been identified it must be valued. Valuation of property can be very simple (as in the case of valuing bank accounts and exchange traded stocks), more complex (as in the case of valuing real estate and pensions) or very complex (as in the case of valuing privately owned business interests). In intermediate difficulty valuation cases, if the parties are unable to agree upon a value for an asset, an expert or experts will be retained to determine the value. In complex valuation issues, experts are almost always required to value the property.

When all of the assets and debts have been identified, classified and valued, the decision of how to divide them is made - either by the spouses by agreement with the advice of their attorneys or, if the parties can not agree, with the assistance of a mediator, by an arbitrator or a Judge.

Donald S. Waskover, Esq.
Fort Lee, New Jersey 07024
Phone: 201-262-8888
Fax: 201-266-0503