Beginner’s Guide to Divorce Laws in New Jersey
If you are thinking about ending your marriage in New Jersey, there are several laws and processes you should know about before moving forward.
Understanding the legal requirements involved in a divorce will help minimize time, costs and stress that you will go through.
You should familiarize yourself with the following information and seek legal counsel if have questions or want professional representation at any time during your divorce.
Assets and Debts
Marital Property and Division of Assets in New Jersey
New Jersey is an equitable division state, meaning that property is divided fairly in a divorce, though not necessarily on an even 50/50 basis.
The first step in a division of assets is determining what is marital property and what is not. Only marital assets are considered in a division of assets. According to law, marital assets are those accumulated during the course of the marriage up until the day of separation.
There are some exceptions, such as with inheritances and personal gifts that may be considered separate property if certain conditions are met.
Equitable distribution consists of the court deciding which assets are marital vs. separate property, placing a fair market value on each asset, and then actually dividing the assets equally. There are a number of factors that New Jersey courts will consider when making decisions about an equitable division of assets. Some of these may include:
- Length of the marriage
- Age, physical and emotional health of both spouses
- Contribution of one of the parties as a homemaker
- Contribution of each party to the training, education or earning capacity of the other
- The economic circumstances of each party
- Tax implications of the proposed distribution to each party
- Debts of each spouse
- The income and property brought into the marriage by each party
- Established standard of living during the marriage
- The contribution of each party to the acquisition, depreciation or appreciation of marital property
- Any business ownership of either party or both parties
- The income and earning capacity of each party
- Education, skills, work experience, training, and the time and expense that would be required to obtain sufficient training in order to be self-supporting at a standard of living similar to that of during the marriage
- Custodial arrangements for any children in the marriage
- Any written agreement entered into by the parties before or during the marriage concerning property division. This could be a pre- or post-nuptial agreement.
Marital debts are those that are accumulated during a marriage. They can be incurred by both spouses or by one spouse. In New Jersey, both spouses are liable for marital debts.
Because New Jersey is an equitable distribution state, a court must also consider debts when dividing property. In cases where debt was acquired before a marriage or after a marriage, then those funds are considered non-marital debts and the person who accumulated them will be the one who is responsible for repayment.
When it comes to splitting payment of the debt in a divorce, the debt will be split fairly but not necessarily 50-50. This needs to be negotiated as part of the settlement, and may include each spouse’s ability to pay, income, alimony and support payments and other factors.
Courts in New Jersey assume that all property owned together or separately when they get a divorce is marital property. If is up to the spouse claiming it is separate property to prove that a gift was separate and intended only for them instead of both spouses.
Even if a gift is clearly shown to be separate, if it is commingled then it becomes marital property. For example, if someone gifts one spouse a large sum of cash but it is then put into a joint bank account, it becomes marital property.
Inherited property is not considered marital property in New Jersey if it is inherited by only one spouse.
However, if the inheritance is commingled, then it may be considered marital property. For example, if a spouse places cash in a joint bank account or adds the other spouse to the title on an inherited house, then it is marital property.
The best way to avoid commingling is to place all inherited assets into a separate account and document your actions accordingly.
Another way to protect an inheritance is to have a spouse sign a post-nuptial agreement whereby he or she agrees that the inheritance belongs to one spouse only, no matter how it is used in the marriage.
Pensions, IRAs, 401Ks and Retirement Plans
Any retirement benefits acquired during a marriage are considered marital property and subject to equitable distribution laws during a divorce in New Jersey.
Only retirement benefits accumulated during the marriage are subject to equitable distribution in what is known as the “marital coverture period.” That period ends on the date the Complaint for Divorce is filed in the Superior Court of New Jersey. Any contributions made to a retirement account after that date are considered separate property.
A spouse will normally be entitled to 50% of the marital portion of any retirement account. However, in cases where there are not enough other marital assets to meet equitable distribution standards, then other arrangements will be made. For example, a person may receive the family home in exchange for the other keeping a larger share of their pension account. It is a give and take process.
Determining the exact value of pensions and retirement accounts can be a complex process, and many times an expert such as an accountant, business appraiser, pension valuator, actuary, or a certified divorce financial analyst may be retained to make an accurate assessment.
Once values have been established, they must be split after the divorce through the creation of a qualified domestic relations order, more commonly referred to as a QDRO. The QDRO must be approved by the courts and then it can be submitted to a retirement plan administrator who must also approve it. This establishes that a spouse can be considered an alternate payee, and the retirement vehicle is then divided according to the specifics contained in the QDRO.
If you’re interested in getting a QDRO online, we recommend using QDRO Counsel! Their comprehensible platform is the perfect resource to get an expertly-formulated QDRO, all from the comfort of your home.
All real and personal property acquired before a marriage, or property acquired during a marriage through a bequest, devise, descent or gift is considered separate property.
Gifts given to one spouse by the other during the marriage are considered marital property. To be considered non-marital property, a spouse must present clear and compelling evidence that the property is separate. This might be done through the execution of a pre- or post-nuptial agreement or through other similar means.
Alimony and Child Support
Alimony in New Jersey
Alimony can be granted to either a husband or a wife in New Jersey. The goal of alimony is to try and allow both spouses to continue to live as they did during their marriage.
There are four kinds of alimony that can be paid in New Jersey. They include:
- Limited Duration Alimony. Payments are made for a fixed period that cannot exceed the length of the marriage. This type of alimony is reserved for marriages that lasted less than 20 years.
- Reimbursement Alimony. This type of alimony is awarded when one spouse has provided financial support to the other spouse so that he or she can pursue a higher level of education.
- Rehabilitative Alimony. This allows a financially dependent spouse to receive payments while they undergo training or education that will make him or her a more viable employee in the job market. This type of alimony may include paying for living expenses and paying for the costs of the actual training or program.
- Open Duration Alimony. When a marriage lasts more than 20 years, and a former spouse does not have equal present or future earning capacity, then alimony for an open ended amount of time may be paid. Alimony may be modified or end with one spouse or the other is remarried, becomes disabled or retires.
By law, courts in New Jersey must weigh 14 statutory factors in determining the amount of spousal support to be awarded. Those factors include:
- The actual need and ability of the parties to pay
- The duration of the marriage or civil union
- The age, physical and emotional health of the parties
- The standard of living
- Earning capacities, education levels, vocational skills and employability of both parties
- Length of absence from the job market
- Parent responsibilities for any children
- Time and expense necessary to acquire a sufficient education
- History of financial or non-financial contributions to the marriage
- Equitable distribution of property
- Income available to either party through the investment of assets
- Tax treatment and consequences of both parties related to any alimony award
- The nature, amount and length of pendente lite support paid
- Any other factor the court deems relevant
Child Support in New Jersey
Child support in New Jersey is calculated by using the Child Support Guidelines formula that takes several factors into consideration, including family income and the amount of time each parent spends with a child. The guidelines were developed by economists at the request of the Supreme Court of New Jersey so that child support could be applied with fairness and uniformity throughout the state.
The parent who is receiving child support payments is expected to pay several expenses from the amount they receive. This includes:
- Unreimbursed health care up to $250 per child per year
- Work-related childcare
- Health insurance
- Miscellaneous items
- Other expenses deemed appropriate by the court
In some cases, there can be a reduction of basic child support payments if other children from another relationship are considered legal dependents, if there are other child support orders for other children, or if Social Security benefits are already being paid to the child.
There can also be a reduction based on how much overnight parenting time there is. If the non-custodial parent has the children less than 28% of the time (less than 104 overnights), the court will use a sole parenting worksheet to calculate a child support obligation. If the non-custodial parent has the children over 28% of the time (more than 104 overnights), the court will use the shared parenting worksheet. This will cause a greater reduction in a payer parent’s child support obligation.
If a family has a combined income of more than $187,200 per year, the Child Support Guidelines will be used, but the court may then also award a discretionary amount to make sure the children are supported in line with the family’s actual financial circumstances.
The guidelines do not apply in families with more than six children or if the children are over 18 and attending college away from home. Spouses may also be able to deviate from the guidelines if they can show good cause. College tuition and related expenses also are not added into child support and are addressed separately.
Child support can be modified either upward or downward if the parent seeking the modification can show there has been a substantial change in their financial situation. This can include a job change, job loss, or even in the amount of time a parent spends with their child.
Courts are given leeway to deviate from the guidelines if it is determined that a proposed child support arrangement would not meet or would exceed the reasonable needs of the child, or if the ability of each parent to provide support appears to be inappropriate or unjust.
If a parent misses child support payments, then the other parent can petition the courts to force payment through several possible means. This can include withholding the parent’s wages or benefits, placing liens on their property, garnishing tax refunds, and in some cases imposing criminal penalties.
Child support is typically paid according the marital settlement agreement which will typically be when a child graduates from college, begin working full time or if they get married or join the military.
Child support payments are enforceable by law and if a parent falls behind in payments, they could be facing garnishment of wages, the suspension of driver’s licenses or professional licenses or in some cases incarceration until the obligation has been met.
Custody and Visitation
Child Custody in New Jersey
New Jersey has adopted the Uniform Child Custody Jurisdiction and Enforcement Act to govern child custody issues in the state.
The state recognizes two types of child custody:
- Legal custody. This is when a parent is allowed to make important decisions that affect a child’s life. This may include where to go to school, religious instruction and medical treatment and decisions.
- Physical custody. This is where a child lives with a parent. It is common for one parent to have physical custody and the other parent have visitation rights to minimize the disruption on a child’s life.
There are several factors that determine child custody arrangements, but the primary consideration is creating a situation that is in the best interests of the child.
Courts will look at several factors in determining child custody which can include:
- The amount of cooperation and communication between the parents
- If any domestic violence is present in the home
- The child’s overall safety in each home
- The child’s adjustment to home, school and community
- The mental and physical health of all individuals who are involved
- The level of each parent’s involvement in past significant decisions regarding the child
- Any prior agreements that were put in place related to making decisions about the child
- The wishes of the child, especially if they are older
- The distance between the parents’ residences, transportation issues and daily schedules that might be impacted
- Any other factor that the court may find relevant
By default, courts assume that a child will do best when both parents are actively involved and will either ask parents to create such a plan, or if there are disagreements, they will draft a plan on their behalf. The plan outlines the rights and responsibilities of each parent in a very detailed fashion.
New Jersey also recognizes visitation rights for grandparents, great-grandparents, or a sibling of a minor child to petition for visitation rights.
One of the grounds for divorce in New Jersey that can be cited is “voluntary induced addiction or habituation to any narcotic drug” or sustained drinking problems that last for a minimum of 12 months.
When substance abuse is present, it can impact child custody agreements due to the fact that custody is always based on the best interests of a child. If a judge or mediator is concerned that substance abuse may have an impact on a parent’s ability to supervise a child, then this will be taken into consideration when custody is determined.
To prove a substance abuse case against a spouse, it is critical to document the substance abuse and how it has impacted the marriage. In New Jersey, risk assessments by therapists or psychologists are often ordered where there are concerns about substance abuse or other negative issues and these expert opinions carry great weight in the eyes of the court.
If custody is allowed, it may be ordered to take place under supervised conditions only for the addicted parent if there is a concern for the child’s safety if left unsupervised. When the addicted parent’s health improves or they complete rehabilitation, then the court will re-evaluate the family’s case to see if custody should be modified.
Bifurcation of marital status
Bifurcation means that both parties in a divorce can legally divide their divorce into two stages. The first part satisfies the grounds for the divorce. The marriage is terminated at that point.
Bifurcation means that the financial aspects of the divorce such as child custody, visitation, child support, alimony or other contentious issues that may have stalled or that have become major sticking points will be finalized at a later date.
In New Jersey, bifurcation is not allowed in the vast majority of divorces, unless the Presiding Judge approves of bifurcation (which is granted only in “extraordinary circumstances and for good cause shown”).
Couples who are granted this option in New Jersey need to understand they could incur more legal bills going this route and that because some of the incentives to resolve differences are removed by bifurcation, a final settlement could take much longer.
According to New Jersey law, each spouse must fully disclose all assets and debts they have so that equitable distribution can be fairly applied. This includes marital and non-marital property which can lead to disputes that must be resolved before moving forward.
In some New Jersey divorces, a spouse may be reluctant to disclose assets or may purposely hide them. When that happens, a formal legal process known as “discovery” can be implemented, forcing a spouse to produce required documentation. Failure to do so could result in legal action against the offending party including fines or other penalties.
After a spouse files an initial complaint seeking divorce in New Jersey, the other spouse has 35 days to file a response with the court after they have been served with paperwork. If a spouse does not answer the complaint in that timeframe, they could be subject to a default judgment of divorce.
After the 35 day period ends, the plaintiff who filed the original paperwork has 60 days to file a motion to ask the court to grant a default judgment. There is an exception that a default judgment cannot be filed against a defendant who is an active member of the military.
In some cases when spouses agree on all terms, one spouse may agree to not file a response in effect creating a default divorce by agreement. It saves time and money when done this way. In fact, several counties in New Jersey will not even require a court appearance by either side if a satisfactory marital settlement agreement accompanies the default request.
When spouses are not in agreement and a spouse does not respond, they give up their right to contest terms of the divorce, including things such as child custody, support, alimony and a division of assets and debts. A failure to respond could have serious implications because one spouse might end up paying more than they should for support or for debts that were not theirs.
In divorces where domestic violence is present, any divorce actions are secondary to the immediate safety of a spouse or children who may be in immediate danger. There are strong safeguards in place to protect against domestic violence, but if you are married to an abuser, you must still plan your exit from the marriage in a wise and calculated manner, especially if you are financially dependent on the other spouse.
Domestic violence can include any kind of physical abuse, emotional abuse, stalking, or any other kind of harassment including those made through phone calls, mail, or social media inflicted on one spouse by the other. It is a criminal act and an abuser can face serious charges for violating the law.
It is possible to take out a temporary restraining order (TRO) to help protect the spouse who has been abused and any children in the home. This will remove the abuser from the home and hopefully make them realize that they must comply or face serious criminal penalties. A permanent restraining order can be put in place at a later time.
Domestic violence can have a big impact on a divorce. If there are children in the marriage, then custody and visitation must be set up in a way that protects them and the abused spouse as well. In cases where abuse is significant, all parent’s rights can be terminated meaning that a parent will lose all physical and legal custody of a child.
Once a divorce has been finalized, employers will not allow an ex-spouse to remain on a health insurance policy. However, an ex-spouse does have other options for coverage.
Rules vary, but in many cases, group plans will not allow you to drop a spouse immediately after you are separated and before you are divorced unless you obtain a court order or can show proof that a spouse is covered under a different group plan. Some plans allow a spouse to be dropped during the next scheduled enrollment period while others may allow changes at any time.
By law, an ex-spouse can apply for COBRA benefits. This is a law that protects people from losing health coverage during major life transitions. It allows you to continue with your spouse’s current coverage for up to 36 months as long as you pay the premiums. The only drawback is that this can be very expensive because an employer will no longer cover any portion of the premium.
Health insurance for children is usually part of a divorce settlement and child support/custody agreement. Spouses may agree that children are covered under one spouse’s health insurance and if the purchase of private insurance is required, then it will need to be negotiated as to which spouse pays, or if both spouses must contribute to the costs.
Infidelity and Adultery
Infidelity and adultery occur when a spouse has sex voluntarily with someone other than their spouse while they are still married. In a fault-based New Jersey divorce it can be cited as one of the reasons for divorce.
Adultery is not normally an issue when it comes to a division of assets or child support, but it can have an impact regarding alimony. The spouse who has committed adultery may either be awarded less alimony, or they may be ordered to pay a greater amount.
Child custody may be an issue to when adultery has taken place if the marital misconduct has the potential to be dangerous or harmful to the child.
Military Divorces in New Jersey
If you or your spouse are a member of the military and want to get a divorce in New Jersey, the state will allow the member of the military or their spouse to file for divorce in the state, even if they are not residents. The service member or their spouse can also choose to file in the state where the spouse resides or in the state where the service member claims legal residency.
The Servicemembers Civil Relief Act eases many legal and financial burdens of military personnel and their families who face the added challenges of active duty. A service member may choose to waive delaying the divorce by signing off on paperwork which will then allow the divorce to proceed uncontested.
Normal equitable property division laws apply for a military divorce in New Jersey, but the federal government also protects military personnel through the Uniformed Services Former Spouses Protection Act that governs how military benefits are calculated when a divorce takes place. Federal laws will not allow a military member’s retirement to be distributed to a spouse unless the couple has been married for 10 years or more while the service member was on active duty.
Child support and spousal support are determined by New Jersey state guidelines, but federal law dictates that child and spousal support awards may not exceed 60% of a servicemembers pay and allowances.
Former military spouses may be eligible to continue their medical coverage if the marriage lasted for 20 years, and the military spouse served for at least 20 years (the marriage and military service must overlap by at least 20 years), the former spouse does not have medical coverage under an employer-sponsored health plan, and the former spouse has not remarried.
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