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Frequently Asked Divorce Questions
by Robert A. Gleaner of Robert A. Gleaner, P.C.


Can I receive child support or alimony before I am divorced?
Yes. In fact, one does not even need to file a Divorce Complaint in order to obtain support. Instead, a Complaint is filed for "Separate Maintenance." Even in a divorce context, while the divorce is pending, support can be awarded by the filing of a Motion and then a determination by a Court on the Motion as to how much support or alimony should be paid pending a final determination of all issues.

How is spousal support (alimony) calculated?
Alimony, as opposed to child support, is not as definitive and is based on a number of factors including the actual need of the party, the ability of the other party to pay, the duration of the marriage, the age, physical and emotional health of the parties, the standard of living established in the marriage, the likelihood that each party can maintain a reasonable comparable standard of living, as well as a number of other factors. The alimony statute in New Jersey was recently amended so that the court is now permitted to award not only permanent or rehabilitative alimony but also limited duration alimony and reimbursement alimony. There are no fixed "guidelines" as there are with regard to child support.

What are the different types of support that can be obtained in a divorce proceeding?
Basically there is (1) child support, which is support paid by one spouse to the other for the benefit of the children and (2) alimony, which is support paid by one spouse to the other for the maintenance of the other spouse.

How is child custody determined?
Unless the parties can agree, custody is determined by the "best interests of the children." In general, in New Jersey, we have now moved toward a concept of a "parent of primary residence" (PPR) and a "parent of alternate residence" (PAR), the object being that the parents in general should be joint custodians of their children, each with input into the manner in which the children are being raised with the children having a primary and alternate residence. However, this recent change in nomenclature does not change the fact that one party or the other will have the children in their home more than the other. When this is an issue, and the parties cannot agree, a study will be undertaken of each of the households and, in most cases, a neutral party will be appointed by the Court to interview the parties and perhaps the children, view the households and make recommendations to the Court.

Are payments for child care, medical care and other similar costs included as a part of child support?
The New Jersey Child Support Guidelines, as they now exist, take into consideration the general basic cost of a household which are (1) "fixed" shelter costs, such a mortgage/rent, utilities; (2) certain "variable" expenses, such as food and transportation; and (3) certain "controlled" expenses that would include clothing, personal care, entertainment and other personal items. However, additional amounts would be payable, such as unreimbursed medical expenses and child care. This would be above and beyond the basic child support award. Additionally, the Court has discretion to order other costs above and beyond the basic child support guideline figure, which may include private school, post-secondary school, special education and any number of other expenses that were not contemplated by the child support guidelines, if a Court is convinced that the expense is reasonable.

How is Child Support calculated?
In New Jersey, child support is based on Child Support Guidelines in New Jersey and is basically determined by taking the income of each of the parties and also some other factors and plugging same into a set formula that has been determined by a committee of the New Jersey Supreme Court. Besides including the income of the parties, the amount of time that each party spends with their children is also a factor so that essentially, in some sense, the more time that a parent spends with the children, the lower his or her child support obligation will be. There are also several other factors that go into the equation, including the requirement to pay child care and other factors. The only way to make a definitive answer as to how much the child support obligation will be is to have all pertinent information available and then utilize the guidelines step by step in order to find the ultimate amount.

How long must I pay or can I receive child support?
Child support concludes upon the emancipation of the child or children. What this actually means is that child support discontinues when the child is expected to be self supporting. There is no fixed time for emancipation, however. The issue is a question of fact. In general, however, emancipation may occur upon a child reaching majority, upon the child's graduation from secondary education, upon the child's entry into the armed forces, upon the child's marriage, upon the child's graduation from post secondary or even graduate school or at any other time that the Court believes the child is expected to be self-supporting.

Can my spouse and I retain the same attorney?
No. Even when uncontested, it would be unethical and improper for one attorney to represent the interests of both husband and wife.

Do I need to hire an attorney to obtain a divorce?
While it is not mandatory that you hire an attorney, in most cases, it is beneficial to have an attorney represent you because issues arising out of any marriage tends to be complex. For most people, this is the only time they will have gone through a divorce. They do not know the general principals of divorce law or the procedures. It is emotionally draining and totally unknown to that person. It therefore makes sense to have an attorney who has experience to guide you through this period of your life.

How is the divorce commenced?
A document is filed with the Court Clerk's office called a "Complaint". After it is filed, it is served upon the other spouse. The other spouse can then file another pleading called an "Answer" or an "Appearance." Together, these documents will allow the parties to come before the Court for a determination. Many times, all issues have been resolved by the parties amicably, either between their attorneys or with the assistance of a mediator. Thus, once the Complaint is filed and a default is taken, the divorce is then granted quickly. Other times, the filing of the divorce Complaint is only the beginning of the action and the beginning of a long road to determine all issues involved in the divorce.

How quickly can I be divorced?
It may be said, in general, that the more cooperative the spouses are, the faster the divorce can be accomplished. However, even if the spouses are cooperative, if they have a very complicated financial situation with substantial assets, a longer time frame may be necessary in order to appraise assets and to make other determinations. Of course, if issues are contested, and if there are substantial issues at stake, the case could go on for a number of years. The converse is that if the parties are cooperative and if there are no substantial issues to be contested, same can be obtained relatively quickly.

Is there always a trial?
No. In fact, most cases are not determined by trial and are settled sometime along the way, either by the lawyers themselves or with the assistance of a mediator, or through the use of a Matrimonial Early Settlement Panel.

My spouse and I are very cooperative. Is there any way that we can limit attorney fees?
Mediation in the area of divorce law has become very popular. A good mediator can help the parties that are generally cooperative come to an amicable agreement with very little attorney participation. In mediation, the mediator will assist the parties in getting all pertinent information together and help them evaluate that information. This would include, but not be limited to evaluation of assets, determination of custody issues and every other issue that needs to be determined. Once the parties are in general agreement, the mediator or a lawyer, specifically retained by the mediator for the parties, would draft either a Memorandum of Understanding or a Property Settlement/Separation Agreement. Then each party can take that agreement or memorandum to their own lawyers for review and discussion. Once approved, the Agreement can be signed and then one attorney or the other can do what is necessary in order to obtain the divorce for the parties. The role of the attorney, while important, is very limited and thus there is a substantial savings in legal fees.

What are the grounds for divorce in New Jersey?
In New Jersey, there are several "fault" grounds and two "no fault" grounds. With regard to the fault grounds, they are adultery, desertion, extreme cruelty, separation, drug addiction, habitual drunkenness, institutionalization, imprisonment and deviant sexual conduct. The original "no fault ground" was living separate and apart for eighteen months. As of January, 2007, an additional "no fault ground" was added - "irreconcilable differences". The only requirement is that you need to state that there has been a breakdown of the marriage for a period of six month and there is no prospect of reconciliation.

What if my spouse does not consent to the divorce?
Ultimately, the spouse does not need to consent to the divorce. Although, with regard to the fault grounds, you would need to prove the cause of action for divorce in order to obtain the divorce, (that is, for example, if your spouse committed adultery, you would need to prove this to the Court if you are claiming divorce on the grounds of adultery), once eighteen months passes, either party would be entitled to have a divorce without the consent of the other. Accordingly, the issue of consent is never an issue, unless someone wants to have the divorce in a faster period of time than eighteen months.

What is the Matrimonial Early Settlement Panel?
This is a program run through the Court system that attempts to settle all issues involved in the dissolution of a marriage prior to a trial. Family Law Attorneys take turns as panelists to hear contested cases that are brought in on a designated day. The attorneys for each of the spouses will appear before the Matrimonial Early Settlement Panelists and present all issues. In most cases, the panelists will have reviewed an MESP Memo and therefore will have some familiarity with the issues. The Panelists will make their recommendations as to how they believe the issues should be resolved. This is then presented by the attorneys to their clients and assuming the recommendations (or modified recommendations) are accepted, in most cases the parties would immediately proceed to a Judge and the divorce can then be obtained on that day. If the matter does not settle at the MESP, in most cases, a trial date would be set on that day.

Will marital fault impact on my rights to a property settlement?
The Court does not take into consideration the fault of one party or the other when determining economic issues. There are exceptions in some cases, and that is that while adultery is no factor with regard to equitable distribution or child related issues, it may be a factor, in some cases, in determining alimony. Again, this is the exception as opposed to the rule.

How much will my divorce cost?
The more issues that need to be contested, the higher the cost will be. Thus, it is obviously in the interest of the parties to attempt to be as cooperative as possible and to work out as many issues between them as they can. Attorneys generally require the payment of a retainer that is usually determined by the amount of work that they anticipate performing in the case. All attorneys are required to have periodic invoices and payment is expected upon receipt of invoice, absent any different agreement with the attorney. In addition to attorney's fees, court filing fees and other costs must be paid by the litigant. Other costs may include deposition costs, expert fees and any number of other related fees that may be incurred that would be necessary to have the attorney prepared to address the issues in the context of the litigation.

How will the marital property be distributed?
All property acquired by the parties during their marriage is subject to "equitable distribution." The purpose of equitable distribution is to achieve a fair distribution of what the parties acquired during their marriage. "Equitable" does not necessarily mean that the property will be divided one-half to each of the parties. The theory is based upon marriage as a partnership so that even if one party (usually the husband) technically acquired all of the assets through earned income, while the wife was at home and not working outside the home, the Court would still recognize that the marriage was, in fact, a partnership and but for the fact that the wife was at home keeping the household for the family, he would not have had the opportunity to earn the income for this marital partnership. Thus, the identity of the person who actually earned the money is immaterial and unless the parties can agree, the Court would distribute all property in a manner that it deems "equitable."

I cannot afford a lawyer, what can I do?
Where appropriate, a Court will not only order a spouse to pay temporary alimony and child support during the pendency of the divorce action, a spouse may also be required to pay for your attorney and any expert that needs to be hired. In cases where there is little or no property and very simple issues, there are regional legal services in each county in New Jersey which may be able to assist people with little or no money. You need only look in your local phone book to find the legal services office nearest you.

What property is not subject to equitable distribution?
There are several categories of property not subject to distribution. The major ones include property acquired before the marriage which was maintained separately from marital assets or gratuitous transfers by way of gifts, devise or bequests from third parties.


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