FAQs

Divorce and other family law matters are challenging, which is why it’s only natural to have several questions when facing them. That is why we’ve compiled our short divorce and family law FAQ below. Continue reading for answers to some of your most pressing questions, and contact the Law Office of Stephanie Albrecht-Pedrick, LLC for comprehensive legal guidance today.

New Jersey Divorce & Family Law FAQs

Divorce Process

Q: What are the grounds for divorce in New Jersey?
A: New Jersey allows both no-fault and fault-based divorce, but most people today file for divorce based on irreconcilable differences, which simply means that the marriage has broken down for at least six months and there is no reasonable prospect that the couple will reconcile.

Q: How long must I live in New Jersey before I can file for divorce?
A: Before filing for divorce in New Jersey, at least one spouse must generally have lived in the state for 12 consecutive months. This residency requirement establishes that New Jersey has jurisdiction over the divorce. There is one notable exception. If you are filing on the ground of adultery, the one-year residency requirement does not apply. You should also note that it does not matter where you were married. Even if your marriage took place in another state or another country, you may still file for divorce in New Jersey as long as you satisfy the applicable residency requirements.

Q: What is the difference between an uncontested and a contested divorce?
A: There are two primary types of divorce: uncontested divorce and contested divorce. Simply put, if you and your spouse can agree on every issue in your case, including property division, alimony, child custody, child support, and parenting time, your divorce will generally be considered uncontested. Once those issues have been resolved, you may enter into a written settlement agreement, which the court can review and incorporate into your final Judgment of Divorce. Unfortunately, many couples cannot agree on every aspect of their divorce. When that happens, the divorce becomes contested, which means the parties may have to exchange financial information through discovery, file motions with the court, participate in mediation or settlement conferences, and, if necessary, proceed to trial before a judge resolves the remaining issues.

Q: How long does a divorce take in New Jersey?
A: Unfortunately, there is no exact timeline for how long a divorce will take. Every case is different, and the amount of time required often depends on how many issues the spouses are able to resolve together. If you have an uncontested divorce and have already reached a settlement agreement, your divorce may be finalized within a few months after filing. However, if your divorce is contested, the process can easily take a year or longer. Discovery, business valuations, real estate appraisals, custody evaluations, and the court’s own schedule can all affect how quickly a case moves forward. Fortunately, it is worth noting that many contested divorces are ultimately resolved through mediation or the Matrimonial Early Settlement Panel before they ever reach trial.

Property Division

Q: How is property divided in a New Jersey divorce?
A: New Jersey follows the doctrine of equitable distribution. Many people mistakenly believe this means marital property is automatically divided equally between spouses. In reality, equitable distribution means that property is divided fairly, which is not always the same thing as a 50-50 split. When determining what is fair, courts consider a variety of statutory factors, including the length of the marriage, each spouse’s income and earning capacity, each spouse’s contributions to the marriage, and the standard of living established during the marriage, among others. Because every marriage is different, property division will ultimately depend on the specific facts of each case.

Q: What is the difference between marital and separate property?
A: One of the first issues that must be addressed during a divorce is determining which assets are considered marital property and which are considered separate property. Marital property generally includes assets and debts acquired by either spouse during the marriage, regardless of whose name appears on the title or account. Separate property, on the other hand, usually includes property owned before the marriage, as well as certain gifts and inheritances received from third parties. That being said, separate property does not always remain separate. If it becomes commingled with marital assets, or if both spouses contribute to its value over time, it may become subject to equitable distribution.

Q: Are retirement accounts and pensions divided in a divorce?
A: Yes. Retirement accounts and pensions are frequently among the most valuable assets involved in a divorce. In most cases, the portion of a retirement account or pension that accumulated during the marriage is subject to equitable distribution, while amounts earned before the marriage generally remain separate property. If an employer-sponsored retirement plan is being divided, the court will usually require a Qualified Domestic Relations Order, commonly referred to as a QDRO. This separate court order directs the plan administrator on how to divide the account while helping avoid unnecessary taxes and early withdrawal penalties.

Alimony

Q: How do New Jersey courts decide alimony?
A: Unlike child support, there is no mathematical formula used to calculate alimony in New Jersey. Instead, judges consider numerous statutory factors before determining whether alimony should be awarded and, if so, in what amount and for how long. Some of the factors the court will consider include the marital standard of living, each spouse’s financial needs, each person’s earning capacity, the amount of time one spouse may have spent out of the workforce, parental responsibilities, and several other circumstances unique to the marriage. Depending on the facts of the case, the court may award open durational alimony, limited duration alimony, rehabilitative alimony, or reimbursement alimony.

Q: How long does alimony last in New Jersey?
A: The answer depends largely on the length of the marriage and the circumstances of the parties. For marriages lasting fewer than 20 years, alimony generally cannot continue longer than the length of the marriage unless exceptional circumstances exist. Marriages lasting 20 years or longer may qualify for open durational alimony, which does not have a predetermined end date. It is also important to understand that New Jersey no longer uses the term “permanent alimony.” That terminology was eliminated as part of the state’s alimony reform legislation.

Q: Can alimony be reduced or terminated after the divorce?
A: Yes. Even after a divorce has been finalized, alimony is not always permanent or unchangeable. If there has been a substantial and continuing change in circumstances, either party may ask the court to modify an existing alimony award. Some examples include an involuntary loss of income, a serious medical condition, retirement under appropriate circumstances, or a former spouse entering into a supportive cohabitation relationship. As with any request to modify a court order, the person requesting the change must present sufficient evidence demonstrating why the modification is appropriate.

Child Custody

Q: What is the difference between legal and physical custody?
A: Child custody can generally be divided into two separate categories: legal custody and physical custody. Legal custody refers to a parent’s authority to make important decisions regarding a child’s upbringing, including matters involving education, healthcare, and religion. In many cases, New Jersey courts award joint legal custody so that both parents continue participating in these major decisions. Physical custody, sometimes referred to as residential custody, concerns where the child primarily lives on a day-to-day basis. One parent is often designated the parent of primary residence, though parenting time may still be shared between both parents.

Q: How do New Jersey courts decide custody?
A: Whenever a court makes a custody determination, its primary concern is the best interests of the child. Rather than automatically favoring one parent over the other, New Jersey judges evaluate numerous statutory factors before making a decision. Some of these factors include:

• Each parent’s ability to communicate and cooperate with the other parent
• The relationship between the child and each parent
• The child’s safety and stability
• Each parent’s fitness
• The needs of the child
• The continuity of the child’s education and home life
• The child’s preference, if he or she is old enough to make a reasoned decision

Child Support

Q: How is child support calculated in New Jersey?
A: Child support in New Jersey is calculated using the Income Shares Model. Under this system, the court considers both parents’ incomes and determines the amount that would ordinarily be spent raising the child if the parents were still living together. That obligation is then divided between the parents based on their respective incomes. The calculation may also take several additional factors into account, including the number of overnight visits each parent has with the child, childcare expenses, health insurance costs, and certain other allowable adjustments. While the Child Support Guidelines establish the starting point, the exact amount of child support will ultimately depend on the specific facts of each family’s situation.

Q: When does child support end in New Jersey?
A: In many cases, child support ends automatically when a child reaches the age of 19. However, that does not necessarily mean support always ends on a child’s nineteenth birthday. If the child is still attending high school, enrolled full-time in college or vocational school, or has a severe disability, support may continue beyond that point. In most situations, however, child support will not continue beyond the child’s twenty-third birthday.

Relocation

Q: Can I move out of New Jersey with my child after a divorce?
A: If you wish to move out of New Jersey with your child after a divorce, you should not assume you are free to do so simply because you are the parent of primary residence. Under New Jersey law, relocating a child out of state generally requires either the consent of the other parent or approval from the court. If the parents cannot agree, the judge will evaluate whether the proposed move serves the child’s best interests. In making that determination, the court considers many of the same factors that apply in custody cases.

Q: Do I need permission to move to another town within New Jersey?
A: Moving to another town within New Jersey is generally different from relocating out of state because the removal statute does not automatically apply. Even so, an in-state move can still create legal issues if the relocation substantially interferes with the other parent’s parenting schedule or significantly affects the child. If that occurs, the other parent may ask the court to revisit custody or parenting time, and the judge will once again consider what arrangement is in the child’s best interests.

Prenuptial Agreements

Q: What can a prenuptial agreement cover in New Jersey?
A: A prenuptial agreement allows couples to decide how certain financial issues will be handled before they get married. Depending on the circumstances, a properly drafted prenup may identify separate property, establish how marital property and debts will be divided, address alimony, protect a family business or professional practice, preserve inheritances, and provide for children from prior relationships. That being said, there are limits to what a prenuptial agreement can accomplish. Matters involving child custody and child support cannot be predetermined because those issues must ultimately be decided based on the child’s best interests and the circumstances that exist at the time.

Q: Can a prenuptial agreement be challenged in New Jersey?
A: Yes, though challenging a prenuptial agreement is not always easy. The spouse seeking to invalidate the agreement has the burden of proving that it should not be enforced. Some of the most common arguments we see for challenging a prenuptial agreement are that one party failed to provide complete financial disclosure, that the agreement was not signed voluntarily, or that it was unconscionable when it was executed. Fortunately, properly prepared prenuptial agreements that comply with New Jersey law are often enforceable, which is why it is important to have the agreement carefully drafted from the very beginning.

Guardianship for Adults

Q: When does an adult need a legal guardian in New Jersey?
A: There are times when an adult is no longer able to safely manage his or her own personal or financial affairs. This may occur because of dementia, developmental disabilities, mental illness, chronic substance abuse, or another condition that substantially affects the person’s ability to make decisions. In these situations, it may become necessary for the court to appoint a legal guardian. In some cases, however, guardianship may be avoided if the individual previously executed a valid power of attorney or other estate planning documents while he or she still had legal capacity.

Q: How does the adult guardianship process work in New Jersey?
A: Adult guardianship cases are handled in the Superior Court, Chancery Division, Probate Part. The process typically begins with the filing of a verified complaint requesting that the court determine the individual is incapacitated and appoint a guardian. From here, the complaint must be supported by certifications from medical professionals who have recently examined the alleged incapacitated person. The court will also appoint a lawyer to represent the allegedly incapacitated individual throughout the proceedings. Once the court reviews the medical evidence and hears the testimony presented, it will determine whether a guardian is necessary.

Contact the Law Office of Stephanie Albrecht-Pedrick, LLC

If you have any additional questions, or you’d like to speak with a knowledgeable Atlantic City divorce lawyer about your case, please don’t hesitate to contact our experienced legal team today.