Divorce Attorney FAQ: Answers to Your Most Common Questions
Welcome to our Divorce Attorney FAQ page, where we provide answers to some of the most frequently asked questions about divorce. We understand that going through a divorce can be a difficult and emotional experience, and our goal is to help you navigate the process with as much ease and understanding as possible. Whether you're contemplating a divorce, in the midst of one, or have questions about post-divorce issues, we're here to provide you with helpful information and guidance.
Q. Do I have to give back my engagement ring or wedding band when getting divorced?
A. An engagement/wedding ring is considered a conditional gift given by, one to another, on the promise that the two people will marry. Once that condition is satisfied through marriage, title to the engagement/wedding ring transfers to the recipient and is, therefore, not subject to division of property in a divorce.
Q. Why do I have to give personal information regarding my child’s birth dates and social security numbers?
A. This information is included as part of the Confidential Litigant Information Sheet that is submitted with the initial pleadings filed. It is mandatory information needed by the Court.
Q. What is a Custody and Parenting Plan?
A. The parents’ written agreement about a schedule for when the children will be with each parent and how the parents will make decisions about the health, education, and welfare of the children.
Q. What is a Matrimonial Settlement Agreement?
A. A legal document that spells out the terms of a divorce and provides a framework for the relationship between former spouses after divorce. MSAs are also sometimes called Property Settlement Agreements.
Q. When is mediation necessary?
A. The earlier a dispute goes to mediation, the more likely it can be settled. The longer people are involved in disputes, the more they become committed to their positions and are less willing to consider other points of view. Here are a few ideas as to when mediation may be considered helpful:
• There is an issue in dispute;
• All parties to the dispute are willing to meet and try to settle it;
• The parties have some trust in each other;
• Parties want a flexible and informal process;
• No party can ignore the problem;
• Other options for resolving the dispute are too expensive or too slow;
• The case requires a creative solution; or
• The parties would prefer to settle the dispute in private.
Q. Is life insurance required if you have to pay child support or alimony?
A. Yes. A spouse who will be paying child support or alimony to their ex-spouse must obtain life insurance to cover their child support or alimony payments in the event of the paying spouse’s death. The amount of life insurance to be purchased is calculated by multiplying the amount of child support or alimony to be paid by the term, in years, of the child support or alimony payment.
Q. How do I serve my spouse with divorce papers?
A. “Service” of divorce papers is the legal process by which you give your spouse the required notice of the divorce. This basically means you need to make sure your spouse gets a copy of the divorce complaint and summons (divorce paperwork). The easiest way to do this is to get your spouse to agree to accept service, and sign an acknowledgement saying he or she was served. If your spouse refuses, you’ll have to ask a third person to serve your spouse. This third person could be the local sheriff, an attorney or attorney’s agent (such as a process server). This third person should deliver the complaint and summons to your spouse (literally hand them to your spouse), or deliver them to your spouse’s home, and leave them with a competent member of your spouse’s household that’s at least 14 years old. If, despite your efforts, your spouse manages to avoid service, you may be able to mail a copy of the summons and complaint to your spouse’s home address via registered or certified mail.
Q. When does child support end?
A. Child support ends when a child is declared emancipated by a judge (or by agreement of the parties). A child can also be declared emancipated when the child completes his/her formal education unless prior thereto a child marries or becomes employed full time. Thus, child support can continue while a child completes his/her college (and in some cases post-graduate) education.
Q. What are the criteria for determining alimony?
A. Alimony is determined based on criteria laid out in the alimony statute and varies from case to case based on the incomes or income-earning ability of the spouses, the length of the marriage, the educational background and earnings history of each spouse, and the standard of living that the parties were able to achieve in their marriage.
Q. How do I file for divorce if my spouse lives out of state?
A. You may still file for divorce if your spouse has moved to another state, as long as you have lived there for at least one year. However, you still must follow correct procedure and be sure that your spouse is served in the new state according to the laws of your filing state regarding service of process. Your spouse may sign and have notarized an Acknowledgement of Service document which lets the court know that he or she is fine with not being served formally.
Q. Is it legal to file for divorce without an attorney?
A. When a person represents themself without having a divorce attorney, they are referred to as proceeding “pro se.” If you represent yourself in Court, you are called a “pro se litigant” or a “self-represented litigant.” “Pro se” is a Latin term, meaning “on one’s own behalf” and a “litigant” is someone who is either suing someone or is being sued in court.
Q. Who can file for Divorce?
A. Either partner in a marriage, civil union or domestic partnership can file for divorce as long as at least one member of the couple lives in the state. If you formed a domestic partnership or a civil union but now live elsewhere, you might not be able to dissolve the relationship legally in your new state. In that case, you can file in the county where the civil union or partnership took place.
Q. What is an Uncontested Divorce?
A. When both spouses agree on all the key terms of the divorce.
Q. What is a divorce?
A. Divorce is a legal action brought in Court that ends or “dissolves” a marriage. A divorce is granted when a Judge signs an Order called a Judgment of Divorce. This Order is also referred to as a Divorce Decree.
Divorce in New Jersey
Q. How does the duration of alimony work in New Jersey?
A. According to the statute in New Jersey, if you’re married over 20 years it’s open duration alimony. If you are married under 20 years, it depends on statutory factors.
Q. What does equitable distribution mean in the state of New Jersey?
A. The division of marital assets in a manner that is fair but not necessarily equal.
Q. How is child support calculated in the state of New Jersey?
A. Child support is calculated pursuant to guidelines. Typically, the most important facts that go into the guidelines (or “worksheets”) are the number and age of the children, each parent’s income, the amount of annual overnights each parent spends with the children, and health care expenses.
Q. Are parents free to leave New Jersey with children of a marriage?
A. Under New Jersey law, neither parent can remove children (born in New Jersey or who have lived here for at least five years) from the State of New Jersey without the other parent’s consent or a court order.
Q. What are the grounds for divorce in New Jersey?
- Irreconcilable Differences. This ground for divorce is most commonly used. It allows either spouse to file a Complaint for divorce without any specific reason. The only statements the party filing for divorce must make are: 1) there has been a breakdown of the marriage for a period of six months; which makes it appear that the marriage should be dissolved; and 2) there is no reasonable prospect of reconciliation.
- 18 Month Separation. Neither spouse is required to offer evidence of fault or wrongdoing. The Complaint must state that you and your spouse have lived in different residences for 18 months or more and that the months have been consecutive. You must state that there is no reasonable prospect of reconciliation. Living in the same residence in different bedrooms does not fulfill the requirement. You do not have to file any documents to start the running of the 18 months. At the end of 18 months you will file a sworn statement that you and your spouse have been separated, living separate and apart, in different residences for 18 months or more and you do not expect to reconcile.
- Adultery. If your spouse is having an affair and you know the name and address of the “other spouse” you may file for a divorce based on adultery.
- Extreme Cruelty. This ground includes all acts of physical violence and acts of mental cruelty which endanger your safety or health, or which make continued living together unreasonable or improper.
- Imprisonment. If your spouse has been in a prison for 18 months or more consecutive months. The entire 18 months must be after the marriage began. The Complaint for divorce should be filed while your spouse is in prison. If your spouse is released and you resume living together, you no longer qualify for a divorce under this ground.
- Willful And Continued Desertion, Physical. If your spouse moved out of the marital home and your spouse has been gone for at least 12 months. The desertion must be for 12 consecutive months. If you and your spouse agree that you will separate and that your spouse will move out, you may still file a Complaint based on desertion.
- Willful And Continued Desertion, Sexual. Sexual desertion is a persistent refusal by your spouse to engage in sexual relations with you for a period of 12 months or more. This type of desertion cannot be by mutual consent. Your spouse must refuse to engage in relations you desire and would engage in if your spouse were willing.
- Voluntarily Induced Addiction. If your spouse is an alcoholic or drug addict and the alcoholism or drug abuse must be for 12 consecutive months or more.
- Mental Illness. If your spouse has been in an institution for 24 months or more, you are entitled to a divorce. The institutionalization must be for 24 consecutive months and the entire 24 months must be after the wedding ceremony.
Q. What is a checklist for “how to get divorced” in New Jersey?
- You need to be lawfully married. New Jersey allows people to file for a divorce in the State of New Jersey if they are lawfully married. You can file for divorce in New Jersey even if your marriage ceremony took place outside of New Jersey. It does not matter if your marriage ceremony took place in New Jersey, or in any other State in the United States, or even in another country, so long as your marriage is recognized as a lawful marriage in New Jersey.
- You and/or your spouse must satisfy the “residency requirements.”
- You must have a “ground” (a legally acceptable reason) to end your marriage.
- File an uncontested or contested divorce. You determine if you and your spouse can agree on the terms of your divorce (and be able to file for an “uncontested” divorce), or if you disagree and will be having a “contested” divorce.
- Distribute joint marital property. If you and your spouse have any joint marital property (assets or debts) they can be divided in your divorce.
- The payment of spousal support, if requested by either spouse, can be included in your divorce.
- Resolve child custody, visitation and child support if there are minor children. If you and your spouse have minor children from your marriage, the issues of child custody, visitation and child support can be included in your divorce.
Q. What are the residency requirements for a New Jersey divorce?
A. When the Complaint for Divorce is filed, either the spouse who files it (the plaintiff) or the spouse whom it is served on (the defendant) must have lived in New Jersey for at least 1 year.
Q. How much does a divorce cost in New Jersey?
A. The New Jersey State Court filing fees are $300, for parties without children, and $325, for parties with children as the Parent Education Workshop is required by the Court. If the plaintiff is granted a low income fee waiver by the Court they will not have to pay the filing fees.
Q. How long does an Uncontested Divorce take in New Jersey?
A. No one can predict exactly how long it will take to finalize a divorce. The Courts in each county may have different backlogs of Uncontested Divorce actions.
Q. What are the types of alimony?
- Open durational alimony. In some states, the legislature replaced the term “permanent alimony” in the alimony statute with the term “open durational alimony.” Although permanent alimony was once common, in recent years courts typically award it only when a supported spouse ending a long-term marriage is unlikely ever to be able to become fully self-supporting at the marital standard of living. Like permanent alimony, open durational alimony has no predetermined fixed ending date; unlike permanent alimony, however, unless exceptional circumstances exist, a court can order open durational alimony only after a marriage of at least 20 years. Also, unlike permanent alimony, open durational alimony is presumed to end when the paying spouse reaches full retirement age (although this presumption can be rebutted under certain circumstances).
- Limited duration alimony. This type of alimony is also sometimes called durational alimony or term alimony, because it provides for payments to be made for a specified number of months or years. Like open durational alimony, alimony of limited duration is intended to help a supported spouse become self-supporting at the marital standard of living; unlike open durational alimony, however, limited duration alimony has a predetermined ending date. Before September of 2014, courts would generally choose to award limited duration alimony rather than permanent alimony after “intermediate length” marriages, which generally meant marriages of up to about 10 to 15 years in length (depending on other factors). Since September of 2014, however, open durational alimony (which replaced permanent alimony) is generally available only after marriages of at least 20 years, and if a marriage lasted less than 20 years, limited duration alimony cannot exceed the length of the marriage, except in exceptional circumstances.
- Rehabilitative alimony. Just as the title implies, this type of alimony has the purpose of rehabilitating a spouse who needs financial support to reintegrate into the workforce. Courts order rehabilitative alimony for a specific period of time to help a lower earning spouse obtain tools necessary to become self-supporting. It may cover costs of education, training, and living expenses during the reintegration period.
- Reimbursement alimony. This type of alimony reimburses one spouse for financial contributions to the education or career advancement of the other. Although reimbursement alimony can be combined with either limited duration or permanent alimony, it is more common when there is little basis for either of these other alimony types, because, for example, the marriage was too brief, or the marital standard of living was relatively low while the supported spouse was attending school. The spouse who contributed financially to education or training that both spouses expected to benefit from in the future is entitled to repayment of contributions. Reimbursement alimony can include tuition and costs of living expended by a student spouse, as well as any other costs related to obtaining a degree or training.
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