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Divorce or Stay Together?
What steps can I take to
save my troubled marriage?
We are constantly arguing.
It there anything we can do to stay out of divorce court?
If we can't work things out,
should we stay together for the sake of our children?
If we do decide to stay together
until the children are older - for their sake - when would be the
least damaging time to go ahead with our divorce?
Does gender play a role in
how children react to divorce?
Domestic Violence & Spousal Abuse
I have an abusive spouse
- or at least I feel abused - is there anything I should do, or
is what I'm going through just to be expected?
How do I go about reporting
an act of domestic violence?
Am I likely to have any difficulties
reporting the domestic violence to the police?
What if a Temporary Restraining
Order is issued; what then?
Is there anything else I
can do about domestic abuse, short of making a complaint under the
Domestic Violence Act?
Are there ever any false
complaints made under the Domestic Violence Act?
Is there "Legal Separation"
in New Jersey?
Can I leave the marital
Can I make my spouse leave
the marital home?
What are the grounds for
divorce and does fault make a difference in determining the outcome?
The phrase "Extreme
Cruelty" sounds quite harsh. What does it really mean?
What if my spouse won't
agree to the divorce?
Can I apply for an Annulment
instead of a divorce?
How is child custody determined?
Are the courts still reluctant
to grant sole custody to fathers?
Does a spouse's infidelity
have any bearing upon custody determinations?
Support - Generally
What are the different types
of support that can be obtained in a divorce proceeding?
How is Child Support calculated?
What are the Child Support
What if the Guidelines are
Inappropriate for My Case?
Are payments for child care,
medical care and other similar costs included as part of child support?
How long must I pay or can
I receive child support?
Alimony - Spousal Support
How is alimony calculated?
Are alimony and child support
Is there any way of structuring
support payments to optimize tax consequences?
Can I receive child support
or alimony before I am divorced?
Division of Property - Equitable Distribution
How will the marital property be distributed?
How will the Court what
an equitable distribution of property would entail?
What property is not subject
to equitable distribution?
What if certain assets are
titled in my name alone... does this insulate me from an equitable
distribution claim by my spouse?
What if I purchased a house
prior to marriage and used nothing but my own pre-marital funds
in its purchase. The property was titled in my name alone.
After we married, I agreed
to re-deed the home over to the both of us as tenants by the entireties.
Would I be entitled to Social
Security benefits via my soon-to-be-ex-spouses employment
steps can I take to save my troubled marriage?
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Many have found marital counseling, with either clerical or lay
therapists, quite beneficial. While no therapist can solve every
marital problem, many have succeeded in changing the course of their
rocky relationships through counseling. On the other hand, there
are the unfortunate many who fail to save their marriages through
conventional marriage counselling.
One of the necessary elements for most forms
of marriage counseling to work is that both parties earnestly want
the marriage to succeed. Often, one party wants the marriage to
succeed, while the other wants out. Another ill-fated approach to
training to save a marriage through counseling happens when one
or both of the parties attend the sessions because they feel that
it is expected of them.
When a divorcing person announces his or
her plans for ending a marriage to friends or family members, the
classical response is the question: "Have you tried marriage
counseling?" Many people, in anticipation of this question,
see to it that they can respond: "Yes, we've tried marriage
counseling, and it didn't work."
Some couples are turned off by the idea
of marriage counseling, and so never attend. Others get turned off
once the process is initiated. An unskilled or clumsy counselor
can actually contribute to the problems dividing the couple.
Our approach to helping couples reconcile
their issues is discussed on our "Reconciliation" page.
The approach does not rely on psychology, but on understanding the
realities of divorce, the needs and issues of the parties, and the
best approach for communicating, arguing and solving problems.
are constantly arguing. It there anything we can do to stay out of
divorce court? [ Printer-friendly
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As a matter of fact, some conflict and disagreements are important
for long-term success in marriage. The key is really how argument
is conducted. In other words, does argument usually escalate tension,
or does it typically lead to a feeling of resolution. Sometimes,
the problem is basically a lack of some interpersonal skills or
understanding of the other's point of view, values, personality
or temperament. Sometimes, the problem is not lack of skill or understanding,
but rather the noxious byproduct of the negativity that has dominated
Couples in this toxic environment can benefit
greatly by learning how to break the cycle of negativity and pattern
arguments, in order to give certain repair mechanisms a chance to
Before and during potentially touchy discussions,
troubled couples should make an agreement to limit discussions of
contentious issues to 15 or 20 minutes (tops) at a single sitting.
Learning to calm down after arguments is the first step to a constructive
resolution. Arguing spouses need to recognize when they are feeling
overwhelmed and at the point of saying things they would soon live
to regret. Once accustomed to recognizing these threshold points,
individuals can begin deliberate efforts to calm down. If you must
call for a time-out to cool off, then do it.
A very important skill or discipline that
can benefit everyone is the ability to listen or speak without becoming
defensive or promoting defensiveness. Non-defensive listening helps
ease the couple's defensive style of speaking to one another. Defensiveness
is very dangerous and encourages the cycle of negativity. By finding
the courage not to be defensive, or by minimizing it as much as
possible, many troubled marriages can begin to improve.
Another key to living well together is validation;
letting the other know with little clues that his or her point of
view is understood. This can be one of the most powerful tools for
healing in a relationship, marital or otherwise. Instead of attacking
or ignoring each other's views, the partners try to see the problem
from each other's perspective. Validation is simply putting oneself
in the other's shoes and vividly imagining how they must feel and
believe. This very effective technique is also known as the "first
position perceptual shift." To reinforce this learning, it
is important - once some success has been experienced - continue
to practice these lessons until they become automatic.
we can't work things out, should we stay together for the sake of
our children? [ Printer-friendly
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Divorces occur for different reasons. Some people have just grown
apart. Others can't argue or make important joint decisions constructively.
Many people who are unhappy or unfulfilled in their marriages do
stay together until the their children are a certain age, or until
they have all left the nest. There is a lot of controversy in the
research about whether the decision to divorce or to stay married
in a loveless marriage effects the children one way or the other.
Writers in this area have even contradicted themselves over time.
Many people become better parents and better friends with each other
following a divorce.
One thing is for certain, however. If the
divorce is being contemplated because of Domestic Violence, things
only get worse for all involved if the abuse is permitted to continue.
While offenders can be rehabilitated, it is not in the children's
best interests for cohabitation to continue in the presence of continuing
violence. Please visit our "Domestic Violence" page for
more information on this subject.
Staying together or divorcing for the sake
of the children depends upon the nature and extent of the marital
discord. The key question to ask is whether the unhappy couple could
cooperate on parenting issues when staying together. In other words,
if the decision to stay is premised upon what's best for the children,
there has to be a conscious decision by both parents to the effect
that their needs to be happy in a marital relationship are being
subordinated by the needs of the children to have their parents
stay together. That being the case, if the couple cannot realistically
expect to function as a unit in parenting their children, the decision
to stay together for the sake of the children should be rejected
as a "lose-lose" proposition.
we do decide to stay together until the children are older "for
their sake" when would be the least damaging time to go ahead
with our divorce? [ Printer-friendly
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All children, regardless of age and gender, feel a short term impact
resulting from their parents' divorce. Please consider the following
general observations (they are ONLY general observations), often
reported as descriptive behaviors or symptoms, by age:
Preschoolers: These children sometimes suffer
sleep disturbances. They may have problems with toilet training
and eating with utensils, and may forget skills they had earlier
5-6 years old: These children may throw
temper tantrums and show other signs of increased aggression. They
sometimes harbor feelings of self-blame and intense sadness.
6-8 years old: These children long for their
parents' reconciliation. Like the preschoolers, they sometimes experience
sleep disturbances. They also want to appear and be loyal to both
9-12 years old: Conversely, these children
feel and direct anger at both parents, but often side with one.
They experience extreme feelings of embarrassment and mortification.
13-18 years old: These children experience
more extremes than the 9-12 years old group, including extremely
angry and blameful reactions. Interestingly, many of them worry
about their personal finances and assets, and whether they would
have to directly suffer the economic effects of the divorce. Loyalty
conflicts are also observed to exist. Some of these youngsters are
engaged in increasing sexual exploration. Others go into social
withdrawal and may experience anxiety about their relationships.
The bottom line is that children experience
short-term adjustments to separation and divorce at every age. There
is no "right age," as far as the children are concerned,
to divorce. One phenomenon I have observed rather often is the brooding
contempt that many adult children have expressed "and I'm talking
people in their thirties and forties" toward their elder parents,
who waited until all the children were all married-off to announce
their plans for not going into retirement together. Many of them
believe that they were made to live a lie, and that their positive
recollections of childhood were, in large part, orchestrated illusions.
gender play a role in how children react to divorce?
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Gender comes into play as well. Males usually react differently
from the way females do. Males often become aggressive, with females
frequently becoming withdrawn. For most children "as long as
the battling stops between the parents" life becomes more stable
after the first year of divorce. This is particularly true where
they are transferred from a hostile home to a calm one. But whether
their parents stay married or divorce, if there is constant conflict,
children will suffer long-term consequences either way.
I believe that children can and do survive
divorce, as long as their parents declare a truce with each and
go on to provide a relatively predictable lifestyle for their children
to feel secure about sharing.
I have an abusive spouse "or at least I feel abused" is
there anything I should do, or is what I'm going through just to be
] [ Return to
Some people believe that abusive conduct is limited to physical
violence. However, this is not the case. Emotional abuse, imprisonment,
physical intimidation, threats, financial blackmail, and sexual
cruelty are all forms of abuse that you should respond to in order
to protect yourself and your children. These types of behavior can
escalate to physical violence, and witnessing abusive behavior between
parents in any of its various forms can have a long-term detrimental
effect upon children. Blackened eyes, bruises and fractures should
not be a prerequisite for seeking help. Emotional scars are sometimes
equally damaging and difficult to heal.
must be viewed in the broadest possible sense. Any angry touching,
shoving or bumping is physically abusive.
Emotional abuse can take many forms. A distinction must be made
between mere insensitivity and deliberate mental or emotional cruelty.
Abuse should not
be tolerated in an effort to preserve the marriage "for the
sake of the children." Long-term harm to children who have
witnessed to a parent's fear, shame and humiliation outweigh any
benefit derived from preserving an abusive relationship.
Spouses who prevent their mates from seeking help, or simply from
temporarily getting out of harm's way are abusers. Barring the door,
confiscating car keys, or hiding wallets, pocket-books or clothing
are all acts that prevent a victim from escaping potential domestic
abuse or violence. This is "imprisonment." While imprisoning
itself is an act of terror, imprisoning one's spouse or "lover"
can lead to physical assaults or even torture.
often precedes other acts of violence. While verbal terroristic
threats may never be spoken, the person engaging in the intimidation
may communicate the threat of immediate harm to the victim "
quite convincingly " yet non-verbally. There is no question
left in the victim's mind that the slightest hesitation in yielding
to the abuser's demands will trigger an escalation of violence.
can take many forms. Please carefully review our "Domestic
Violence" page for a comprehensive listing of types of abusive
conduct New Jersey recognizes as actionable under its Domestic Violence
How do I go about reporting an act of domestic violence?
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Physical violence should be immediately reported to the police,
or to a Superior Court Judge or Hearing Officer and a restraining
order applied for to prohibit the abuser from returning to your
residence and from committing any further acts of Domestic Violence.
Initially, a Temporary Restraining Order ( TRO ) will be issued,
on the condition that the Judge, Magistrate or Hearing Officer believes
one is necessary to deter further acts of Domestic Violence
you report the violence to the police during the hours of about
6:00AM to about 3:30PM, the officer taking the report will, in all
likelihood, direct you to your County's Superior Family Court, where
you will given the opportunity to tell your story to a Hearing Officer
or Judge, who will decide whether a TRO should issue.
you report the violence to the police after about 3:30PM on a week
day (Court closes at 4:40PM), or on the weekend, the officer taking
your report is supposed to convey your complaint of Domestic Violence
to a Municipal Court Judge, who is supposed to be on-call for the
purpose of reviewing such complaints. Sometimes, this does not happen
the way it should in practice.
Am I likely to have any difficulties reporting the domestic violence
to the police?
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It has been observed on more than just a few occasions that "absent
signs of a physical assault" some police departments do not
contact their Municipal Court Judge for review and decision but,
instead, send the complaining victim away with the advice that they
should make their complaint in Family Court during the week, between
8:30AM and 4:30PM.
is an abusive practice, entirely inconsistent with the letter and
spirit of the Domestic Violence Act. The Act is designed to curtail
violence before it becomes physical violence. It is for this reason
that complaining victims "whenever possible" go to the
police department with another adult companion.
prepared to vigorously protest any decision against issuing a TRO
that was not made by the on-call Judge. The following is excerpted
from New Jersey's Domestic Violence Procedures Manual, and should
be quoted to the reporting officer if there are any problems related
to a refusal to present your case to a Judge:
on Police Response Procedures in Domestic Violence Cases
VI. Emergent Temporary Restraining Orders.
A. Where... the victim requests an immediate court order, the
officer shall contact the designated Judge by telephone, radio,
or other means of electronic communication. The officer should:
1. Assist the victim in preparing a statement to be made to the
2. Explain that the Judge will place the person under oath and
ask questions about the incident.
3. If the Judge issues a temporary restraining order, the police
officer will be instructed to enter the Judge's authorization
on a prescribed form.
your right to be heard! It is yours to exercise.
What if a Temporary Restraining Order is issued; what then?
] [ Return to
If a TRO is entered, the Defendant will be served with the Order
and a copy of your complaint, and a Hearing date set on the issue
of whether a Final Restraining Order ( FRO ) will be granted or
set aside a restraining order once obtained. Always have a copy
of it in your possession.
Is there anything else I can do about domestic abuse, short of making
a complaint under the Domestic Violence Act?
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Yes. The police or the courts may not be the first line of assistance,
depending on the nature of the abusive conduct. Options for help
include consulting a lawyer, seeing a mental-health professional
for both abused spouse and the children, as well as seeking out
support groups and community services for abused spouses and their
should be noted that there are many abusive behaviors that do not
arise to the level of domestic violence as defined by the Act. It
should likewise be acknowledged that many people who otherwise qualify
for protection under the Act, will not opt to seek the court's involvement
in that regard. Instead, they may decide to divorce or separate
from their abusive partners without filing a domestic violence complaint.
Some may try to save and heal their abusive relationship through
counseling. Others might just decide to stick it out.
Are there ever any false complaints made under the Domestic Violence
] [ Return to
On a rather disturbing note, it is true that groundless domestic
violence complaints are filed every year. There appears to be three
leading motivations for abusing the system in this fashion.
The "victim" wants to exclude the estranged spouse or
lover from the home.
The "victim" wants to achieve a perceived advantage in
the context of a contested child custody action.
The "victim" wants to punish the alleged aggressor for
things having nothing whatsoever to do with domestic violence.
an innocent party has been unjustly accused of an act or acts of
domestic violence, it is strongly recommended that competent legal
counsel be immediately sought. Pro se representation should be avoided
if at all possible. In choosing an attorney to defend against a
false domestic violence claim, great care must be taken to ensure
that the attorney is well-versed and experienced in this area of
the law. It is extremely difficult to get rid of a Final Restraining
Order "once one has been entered" without the purported
victim's consent. Experienced New Jersey Family Lawyers with special
knowledge of our domestic violence laws should be contacted the
moment it is suspected that a false accusation may emerge.
Is there "Legal Separation" in New Jersey?
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No. If a marriage is irretrievably broken, a separation only succeeds
in postponing the inevitable. In New Jersey, a separation cannot
compel an unwilling spouse to provide financial information, divide
assets, allocate debts or pay support.
Can I leave the marital home?
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Either party can choose to leave the marital residence. However,
an attorney should be consulted before making this or any other
major change in circumstances. In some situations, physical separation
is advisable. However, in many cases, leaving the home may have
serious negative consequences to the person doing the leaving. This
is particularly true if the person leaving is seeking custody of
the children, but chooses to allow the children to remain in the
residence with the other parent. Departure from the home may also
create an otherwise avoidable financial burden for both parties.
Can I make my spouse leave the marital home?
] [ Return to
The court will rarely compel either party to leave the marital home
until the divorce is final, except in the event of domestic violence.
Only in unique circumstances would a party be compelled to leave
the home in the absence of domestic violence. Victims of physical
abuse or verbal harassment should consider call the police or applying
directly to the Courts for protection. An emergent order may be
entered by either a Municipal or Family Court judge to immediately
exclude the allegedly abusive spouse from the marital home. A hearing
is supposed to be held within ten days to determine whether there
is enough evidence to keep the allegedly violent spouse from returning
to the home on a permanent basis. If such an order is granted, the
violent spouse will not be permitted to return to the home, except
to retrieve personal belongings, and then, only with a police escort.
unsupervised parenting time with the other spouse is ordered, transfers
are often accomplished "curb-side."
What are the grounds for divorce and does fault make a difference
in determining the outcome?
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In New Jersey, there are several "fault-based" grounds
and one "no fault" cause of action for divorce. In most
cases, fault has no bearing on how marital assets will be divided
or on how support and alimony issues will be decided. Many lawyers
and judges consider the concept of marital fault to be dead in New
Jersey C absent truly bizarre circumstances. In rare cases, the
Court may consider the grounds for divorce as a factor in determining
alimony. Again, this is the exception as opposed to the rule. Without
digressing from the realities, the provable claim would have to
be something along the lines of the spouse at fault visiting the
other, sickly spouse "while in the hospital and in guarded
condition" to share the existence of a continuing affair with
a dear friend of the ailing spouse, with the friend having already
moved into the marital home, wearing the hospitalized spouse's pajamas
to bed. Fault is an emotional factor in a divorce, but it typically
has little or no influence on the terms of a final settlement.
The phrase "Extreme Cruelty" sounds quite harsh. What does
it really mean?
] [ Return to
Extreme Cruelty is the most commonly used ground for divorce. More
than one-half of the divorces in New Jersey are based on extreme
cruelty. Common factors can include allegations that the other spouse:
is too tight or too loose with money; denies necessities; uses too
much or not enough credit; neglects monthly payments; spends unreasonably;
is overly controlling; has an erratic employment history; causes
embarrassment or humiliating experiences; abuses alcohol or drugs;
gambles compulsively or unacceptably; is sexually inconsideration;
refuses to have sexual intercourse; is sexually excessive; makes
unreasonable sexual demands; engages in perversions; is impotent;
is homosexual or bi-sexual; plays mind games; dates other people,
short of adultery or deviant sexual conduct; refuses to do chores;
doesn't fulfill the role as parent, spouse or supporter; lies; commits
fraudulent acts; conceals information; insists upon not enough or
too many social activities out of the home; uses offensive language;
perpetrates acts of domestic violence; lacks personal hygiene; lacks
initiative; exhibits noxious or distancing interpersonal behaviors;
uses the cold shoulder treatment; employs domineering behaviors;
engages in non-productive or aggravating arguments; launches threats;
displays unwarranted jealousy; has a rotten temper; is mentally
ill; acts neurotic; is emotionally unstable; commits crimes; has
conflicting religious beliefs or practices; drives badly or dangerously;
harbors unreasonable obsessions; incites provocation; engages in
inappropriate acts of retaliation; displays indifference (the true
opposite of love); lacks affection; nags incessantly; refuses to
have accurately observed that allegations sufficient to sustain
a divorce on the grounds of extreme cruelty involve shortcomings,
problems or disappointments common to even healthy, thriving marriages.
The unspoken policy of the State of New Jersey is not to force anyone
to stay married who does not wish to continue in that relationship.
The allegations can be rather light and there is no necessity to
recite every repugnant act ever committed by the other party in
a Complaint for Divorce. In fact, in the event a Trial is ever actually
convened, most Judges are not interested in hearing any testimony
or reviewing any evidence that is not relevant to economic, parenting,
credibility or safety issues, or to proving the existence of acts
amounting to domestic torts or civil offenses occurring within the
What if my spouse won't agree to the divorce?
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This question, which has to be asked of divorce lawyers thousands
of times in any given year, is quite possibly the result of watching
too many old movies on TV. There were times, dating back to before
the American Revolution, when couples who mutually wanted to end
their marriages would actually hire actors to stage adulterous liaisons
with one or the other of them, as well as private detectives to
document and testify to the performance they observed.
more recently, but still a good many years ago, boudoir photos were
often part of the divorce trial.
speaking, if one of a married pair wants out of the marriage, the
marriage will end, with or without the others' consent or objection.
Can I apply for an Annulment instead of a divorce?
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In a divorce, the court declares the marriage contract broken; in
an annulment, the court says that there never was a marriage. Annulment
is more difficult to prove - and much rarer - than divorce. To go
this route, it is strongly advised that an attorney be consulted.
Out of the great many people who have consulted with our offices
on the possibility of obtaining an annulment over the years, only
three had sustainable grounds. If an annulment is sought for religious
reasons, consult with a priest, minister, or rabbi as well.
because a New Jersey Court grants your Compliant for Annulment (
Nullity ), does not mean your religious faith will recognize the
How is child custody determined?
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Unless the parties can agree, custody is determined by the "best
interests of the children" standard. Both parents begin the
process with an equal entitlement to parenting rights. There are
statutory and other criteria, which Judges are to apply in making
custody and parenting determinations. Please visit our "Child
Custody" page to view a listing of these criteria.
The Supreme Court in Beck v. Beck, 86 N.J. 480, 485 (1981) stated
that the "pertinent statute [N.J.S.A. 2A:34-23] provides courts
with broad authorization for custody determinations in divorce proceedings
...." See also Terry v. Terry, 270 N.J. Super 105 (App.Div.1994).
Generally, in New Jersey, there are two overall concepts of child
The first is "Legal Custody." This refers to the authority
vested in the parents to make decisions of a non-routine nature,
which affect the child's health education or welfare. For example:
what to serve a child for dinner on any given day is a routine
decision, the decision that a child will be raised in a religion
where certain dietary laws and restrictions must be observed is
While determining to take a child to be entertained at the movies
may be a routine decision, deciding what maturity level the child
should be exposed to may be non-routine.
Deciding to bring a child for a haircut is arguably routine, while
allowing a child to color, tint or radically cut his or her hair
might be more non-routine.
Allowing a child to wear a press-on "tattoo," providing
it is suitable to the child's circumstances, is rather routine,
permitting a child to have a piercing done is not routine.
Deciding to drop a child off at school is routine, while determining
that a child will attend a particular school or course of study
mention these examples, because there are two types of Legal Custody;
Sole Legal Custody and Joint Legal Custody. Both have to do with
parental authority to make important non-routine affecting the child.
In a Joint Legal Custody arrangement, there is the underlying presupposition
that parents will eventually develop the ability to come to joint
decisions of a non-routine nature. There must always be consultation
between the parents on such issues before a decision of this variety
is made and acted upon.
If one parent makes such a decision without consulting the other,
the non-included parent can make a motion for appropriate relief
before the Court. For instance, one parent signs a child up for
summer football camp, without telling the other parent " who
may be opposed to the physical risks involved. The other parent
can file a motion with the Court to prevent the child from attending
the camp, and to caution the other parent about making any further
one-sided decisions of a non-routine nature. The Judge may or may
not grant the motion.
In a Sole Legal Custody situation, one parent is the Legal Custodian
and does not have to consult with the other in making important
non-routine decisions. The other parent, conversely, has a duty
to request the custodial parent's permission or consent to every
non-routine parenting decision. If the non-custodial parent, for
example, decides to pull a child out of school for a week to go
for a surprise trip to Disney World without the express permission
of the custodial parent, the objecting parent can file a motion
to prevent the unplanned vacation from happening. Once again, a
Judge is left to decide the motion on a case-by-case basis.
The Sole Legal Custodial Parent, however, must act responsibly in
making decisions that are in the child's best interests. If the
other parent is concerned that the custodial parent is about to
make or has made a decision inimical to the child's best interests,
that parent can make an appropriate motion to the Judge, who will
decide the case either way.
The second general child custody concept in New Jersey is the concept
of physical or residential custody. Residential custody is likewise
broken down into subcategories.
Sole Residential Custody. In this custodial arrangement,
the sole custodial parent has the child living with them for greater
than five days out of the average week, which does not include vacation
arrangements. The other parent has parenting time with the child,
but less than two overnight equivalents in the average week.
Shared Residential Custody. Here, neither parent has the
children more than five days a week, or less than two days a week,
on the average In the context of this arrangement, the nomenclature
is different. The parent who has the children for the majority of
the average week is known as the "parent of primary residence"
(PPR), while the parent having the children for less than half of
the time is called the "parent of alternate residence"
(PAR). This distinction is made, even if the PPR has the children
183 nights out of the year and the PAR has the kids to remaining
Split Residential Custody. In this somewhat unusual scenario,
one or some of the children would live primarily with one parent,
while the remaining child or children would live primarily with
the other. Cases do come up from time to time where certain children
would benefit from living primarily with one parent over the other,
and vice versa, with the benefit of doing so outweighing the children's
interests in living with their siblings. One example would involve
children in two entirely different age groups, with entirely different
needs, better met by one parent than the other. Perhaps the couple's
16 years old figure skating daughter is an Olympics hopeful. Dad's
business has taken him to a locale where the daughter can train
with the best of the best. Mom, on the other hand, is a physician
with a New Jersey practice and a son who is in kindergarten with
some health care issues. Once again, while these arrangements are
uncommon, they do occur.
However, this change in nomenclature does not change the fact that
one party or the other will usually have the children in their home
more than the other. When this is an issue, and the parties cannot
agree, there is a process established by the Rules of Court to deal
with unresolved parenting issues. Please consider the following
5:8-1. Investigation Before Award
family actions in which the court finds that the custody of children
is a genuine and substantial issue the court shall refer the case
to mediation in accordance with the provisions of R. 1:40-5.
Included below is the content of R. 1:40-5 for ready reference:
1:40-5. Mediation of Custody and Parenting Time Actions
Screening and Referral. All complaints or motions involving
a custody or parenting time issue shall be screened to determine
whether the issue is genuine and substantial, and if such a
determination is made, the matter shall be referred to mediation
for resolution in the child's best interests.
However, no matter shall be referred to mediation if there is
in effect a preliminary or final order of domestic violence
entered pursuant to the Prevention of Domestic Violence Act
(N.J.S.A. 2C:25-17 et seq.).
In matters involving domestic violence in which no order has
been entered or in cases involving child abuse or sexual abuse,
the custody or parenting time issues shall be referred to mediation
provided that the issues of domestic violence, child abuse or
sexual abuse shall not be mediated in the custody mediation
process. The mediator or either party may petition the court
for removal of the case from mediation based upon a determination
of good cause.
(b) Conduct of Mediation. In addition to the general requirements
of Rule 1:40-4, the parties shall be required to attend a mediation
orientation program and may be required to attend an initial
Mediation sessions shall be closed to the public. The mediator
and the parties should consider whether it is appropriate to
involve the child in the mediation process. The mediator or
either party may terminate a mediation session in accordance
with the provisions of Rule 1:40-4(f).
(c) Mediator Not to Act as Evaluator. The mediator may not subsequently
act as an evaluator for any court-ordered report nor make any
recommendation to the court respecting custody and parenting
below is the content of R. 1:40-4 for ready reference:
1:40-4. Mediation - General Rules
Referral to Mediation. Except as otherwise provided by these
rules, a Superior Court or Municipal Court judge may require
the parties to attend a mediation session at any time following
the filing of a complaint.
(b) Compensation and Payment of Mediators. Parties in Superior
Court, except the Special Civil Part, assigned to mediation
pursuant to this rule shall equally share the fees and expenses
of the mediator on an ongoing basis, subject to court review
and allocation to create equity. Any fee or expense of the mediator
shall be waived in cases, as to those parties exempt, pursuant
to Rule 1:13-2(a). A party may opt out of the mediation process
after the mediator has expended three hours of service, which
shall include preparation and the first mediation session, and
which shall be at no cost to the parties. Fees shall be as determined
by the mediator and the parties. Failure to pay the mediator
may result in an order by the court to pay and imposing appropriate
(c) Confidentiality. Except as otherwise provided by this rule
and unless the parties otherwise consent, no disclosure made
by a party during mediation shall be admitted as evidence against
that party in any civil, criminal, or quasi- criminal proceeding.
A party may, however, establish the substance of the disclosure
in any such proceeding by independent evidence. A mediator has
the duty to disclose to a proper authority information obtained
at a mediation session on the reasonable belief that such disclosure
will prevent a participant from committing a criminal or illegal
act likely to result in death or serious bodily harm. No mediator
may participate in any subsequent hearing or trial of the mediated
matter or appear as witness or counsel for any person in the
same or any related matter. A lawyer representing a client at
a mediation session shall be governed by the provisions of RPC
(d) Limitations on Service as a Mediator.
Mediators shall be qualified and trained in accordance with
the provisions of Rule 1:40-12.
(2) No elected official, or candidate for elected office,
shall serve as a CDR mediator within the geographic boundary
of the elected office.
(3) The approval of the Assignment Judge is required for service
as a mediator by any of the following:
appointed public officials;
(B) police or other law enforcement officers employed by
the State or any local unit of government;
(C) employees of any court;
(D) government officials or employees whose duties involve
regular contact with the court in which they serve; or
(E) elected officials, or candidates for elected office,
who wish to serve outside the geographic boundaries of the
The Assignment Judge shall also have the discretion to require
prior review and approval of the Supreme Court of prospective
mediators whose employment or position appears to the Assignment
Judge to require such review and approval.
Conduct of Mediation Proceedings. Mediation proceedings shall
commence with an opening statement by the mediator describing
the purpose and procedures of the process. Non-party witnesses
may be heard in the discretion of the mediator, and other non-parties
shall be permitted to attend only with the consent of the parties
and the mediator. Multiple sessions may be scheduled. Attorneys
and parties have an obligation to participate in the mediation
process in good faith in accordance with program guidelines.
(f) Termination of Mediation.
The mediator or a participant may terminate the session if
there is an imbalance of power between the parties that
the mediator cannot overcome,
(B) a party challenges the impartiality of the mediator,
(C) there is abusive behavior that the mediator cannot control,
(D) a party continuously resists the mediation process or
The mediator shall terminate the session if (A) there is a
failure of communication that seriously impedes effective
discussion, (B) the mediator believes a party is under the
influence of drugs or alcohol, or (C) the mediator believes
continued mediation is inappropriate or inadvisable for any
(g) Final Disposition. If the mediation results in the parties'
total or partial agreement, it shall be reduced to writing
and a copy thereof furnished to each party. The agreement
need not be filed with the court, but if formal proceedings
have been stayed pending mediation, the mediator shall report
to the court whether agreement has been reached. If an agreement
is not reached, the matter shall be referred back to court
for formal disposition.
Investigation Before Award (Continued)
the mediation process, the parties shall not be required to
participate in custody evaluations with any expert. The parties
may, however, agree to do so.
The mediation process shall last no longer than two months from
the date it commences or is ordered to commence, whichever is
sooner. The court, on good cause shown, may extend the time
The date for conclusion of mediation shall be set forth in any
Case Management Order(s).
If the mediation is not successful in resolving custody issues,
the court may before final judgment or order require an investigation
to be made by the Family Division of the character and fitness
of the parties, the economic condition of the family and the
financial ability of the party to pay alimony or support or
In other family actions the court may, if the public interest
so requires, order such an investigation.
The court may continue any family action for the purpose of
such investigation, but shall not withhold the granting of any
temporary relief by way of alimony, support or pendente lite
orders pertaining to parenting issues under R. 5:5-4 and R.
5:7-2 where the circumstances require.
Such investigation of the parties shall be conducted by the
Family Division of the county of venue, notwithstanding that
one of the parties may live in another county, and the Family
Division shall file its report with the court no later than
45 days after its receipt of the judgment or order requiring
the investigation, unless the court otherwise provides.
Such investigation of the parties shall be conducted by the
probation office of the county of the home state of the child,
notwithstanding that one of the parties may live in another
country or state.
Direction for Periodic Reports
an award of custody of minor children has been made, the court
may in its discretion file a certified copy of its order or
judgment with the probation office of the county or counties
in which the child or children reside with a direction therein
to such probation office to make periodic reports to the court
as to the status of the custody.
It shall be the duty of counsel to file 2 copies of the order
or judgment with the probation office within 2 days, together
with information concerning the exact place of residence of
the child or children.
Upon the filing of such report, the court may on its own motion
and where it deems it necessary, reopen the case and schedule
a formal hearing on proper notice to all parties.
A certified copy of a custody decree of another state filed
with the Clerk of the Superior Court of this State shall be
sent to the probation office of the county or counties in which
the child or children reside.
Investigation After Award
court may on its own motion when it deems it necessary or where
an application is made by either party to modify the award or
terms thereof, in its discretion require the investigation provided
for in R. 5:8-1. The court may continue such application for
the purpose of such investigation and report.
Filing of Reports
written report of an investigation made pursuant to this rule
shall be filed with the court, shall be furnished to the parties,
and shall thereafter be filed in the office of the Chief Probation
The report shall be regarded as confidential, except as otherwise
provided by rule or by court order.
The report shall be received as direct evidence of the facts
contained therein which are within the personal knowledge of
the probation officer who made the investigation and report,
subject to cross-examination.
Custody and Parenting Time/Visitation Plans, Recital in Judgment
In any family action in which the parties cannot agree to a
custody or parenting time/visitation arrangement, the parties
must each submit a Custody and Parenting Time/Visitation Plan
to the court no later than seventy-five (75) days after the
last responsive pleading, which the court shall consider in
awarding custody and fixing a parenting time or visitation schedule.
Contents of Plan. The Custody and Parenting Time/Visitation
Plan shall include but shall not be limited to the following
Address of the parties.
(2) Employment of the parties.
(3) Type of custody requested with the reasons for selecting
the type of custody.
Joint legal custody with one parent having primary residential
(b) Joint physical custody.
(c) Sole custody to one parent, parenting time/visitation
to the other.
(d) Other custodial arrangement.
Specific schedule as to parenting time/visitation including,
but not limited to, week nights, weekends, vacations, legal
holidays, religious holidays, school vacations, birthdays
and special occasions (family outings, extracurricular activities
and religious services).
(5) Access to medical school records.
(6) Impact if there is to be a contemplated change of residence
by a parent.
(7) Participation in making decisions regarding the child(ren).
(8) Any other pertinent information.
The court shall set out in its order or judgment fully and specifically
all terms and conditions relating to the award of custody and
proper support for the children.
(c) Failure to comply with the provisions of the Custody and
Parenting Time/Visitation Plan may result in the dismissal of
the non-complying party's pleadings or the imposition of other
sanctions, or both. Dismissed pleadings shall be subject to
reinstatement upon such conditions as the court may order.
Trial of Custody Issue
the court finds that the custody of children is a genuine and
substantial issue, the court shall set a hearing date no later
than six months after the last responsive pleading.
(Personal Note: In all of my years of doing custody work, I
have never once experienced or even heard of a custody hearing
date being set any earlier than six months after the last responsive
pleading, except in one particular County, which was then taking
about three years to hold divorce trials.)
The court may, in order to protect the best interests of the
children, conduct the custody hearing in a family action prior
to a final hearing of the entire family action.
As part of the custody hearing, the court may on its own motion
or at the request of a litigant conduct an in camera interview
with the child or children.
(Personal Note: In camera judicial interviews of children age
seven or older, until quite recently, were mandatory if either
the Judge or one of the parents desired that one be conducted.
Now, whether or not an interview will be conducted is left entirely
to the sound discretion of the Judge.)
In the absence of good cause, the decision to conduct an interview
shall be made before trial.
(Personal Note: There was a time not too long ago, where Judges
differed widely on when to convene the interview. Some conducted
them very early in the case, some just before trial, and still
others, following the conclusion of the trial but prior to deciding
the parenting issues.)
If the court elects not to conduct an interview, it shall place
its reasons on the record.
If the court elects to conduct an interview, it shall afford
counsel the opportunity to submit questions for the court's
use during the interview and shall place on the record its reasons
for not asking any question thus submitted.
A stenographic or recorded record shall be made of each interview
in its entirety.
Transcripts thereof shall be provided to counsel and the parties
upon request and payment for the cost. However, neither parent
shall discuss nor reveal the contents of the interview with
the children or third parties without permission of the court.
Counsel shall have the right to provide the transcript or its
contents to any expert retained on the issue of custody.
Any judgment or order pursuant to this hearing shall be treated
as a final judgment or order for custody.
APPOINTMENT OF COUNSEL FOR CHILD
all cases where custody or parenting time/visitation is an issue,
the court may, on the application of either party or the child
or children in a custody or parenting time/visitation dispute,
or on its own motion, appoint counsel on behalf of the child
Counsel shall be an attorney licensed to practice in the courts
of the State of New Jersey and shall serve as the child's lawyer.
The appointment of counsel should occur when the trial court
concludes that a child's best interest is not being sufficiently
protected by the attorneys for the parties. Counsel may, on
an interim basis or at the conclusion of the litigation, apply
for an award of fees and costs with an appropriate affidavit
of services, and the trial court shall award fees and costs,
assessing same against either or both of the parties.
APPOINTMENT OF GUARDIAN AD LITEM
Appointment. In all cases in which custody or parenting
time/visitation is an issue, a guardian ad litem may be appointed
by court order to represent the best interests of the child
or children if the circumstances warrant such an appointment.
The services rendered by a guardian ad litem shall be to the
court on behalf of the child. A guardian ad litem may be appointed
by the court on its own motion or on application of either or
both of the parents.
The guardian ad litem shall file a written report with the court
setting forth findings and recommendations and the basis thereof,
and shall be available to testify and shall be subject to cross-examination
In addition to the preparation of a written report and the obligation
to testify and be cross-examined thereon, the duties of a guardian
may include, but need not be limited to, the following:
Interviewing the children and parties.
2. Interviewing other persons possessing relevant information.
3. Obtaining relevant documentary evidence.
4. Conferring with counsel for the parties.
5. Conferring with the court, on notice to counsel.
6. Obtaining the assistance of independent experts, on leave
7. Obtaining the assistance of a lawyer for the child (Rule
5:8A) on leave of court.
8. Such other matters as the guardian ad litem may request,
on leave of court.
Objection or Refusal of Appointment. A proposed guardian
ad litem shall have the right to consent or to decline to serve
as such, notice of such decision to be in writing to the court
with copies to counsel. The parties shall have the right to
object to the person appointed as guardian ad litem on good
(c) Term. The term of the guardian ad litem shall be
coextensive with the application pending before the court and
shall end on the entry of a Judgment of Divorce or an Order
terminating the application for which the appointment was made,
unless continued by the court. The guardian ad litem shall have
no obligation to file a notice of appeal from a Judgment or
Order nor to participate in an appeal filed by a party.
(d) Fee. The hourly rate to be charged by the guardian
ad litem shall be fixed in the initial appointing order and
the guardian ad litem shall submit informational monthly statements
to the parties. The court shall have the power and discretion
to fix a retainer in the appointing order and to allocate final
payment of the guardian ad litem fee between the parties. The
guardian ad litem shall submit a certification of services at
the conclusion of the matter, on notice to the parties, who
will thereafter be afforded the right to respond prior to the
court fixing the final fee.
APPOINTMENT OF COURT APPOINTED SPECIAL ADVOCATE
any case in which the welfare of a child is in issue, the court
may, on application of any party or on its own motion, appoint
a volunteer Court Appointed Special Advocate (CASA), who shall
act on the court's behalf to undertake certain activities in
furtherance of the child's interests, but who shall not supplant
or interfere with the role either of counsel for child appointed
pursuant to R. 5:8A or guardian ad litem appointed pursuant
to R. 5:8B.
Any such CASA shall be a volunteer associated with a court-authorized
or court-operated CASA program. The duties and activities of
a CASA program and all of its volunteers shall be in accordance
with guidelines established by the Administrative Director of
In summary, when the parties cannot reach an agreement regarding
the custody of children, the court determines the custodial
arrangement that is in the best interests of the children. To
make its determination of custody and visitation, the court
hears testimony from both parties, any experts they want to
present, and any other parties who have direct knowledge of
the ability of each spouse to parent the children. The court
may also interview the children themselves or appoint a guardian
to represent their interests.
see our "Child Custody" page to review the factors considered
by the courts in awarding custody.
Are the courts still reluctant to grant sole custody to fathers?
] [ Return to
No. Courts are not as reluctant as they once were to grant sole
custody to fathers. In New Jersey, there is a "gender neutrality,"
with no presumption that either parent is a better custodial parent
than the other. This applies regardless of the age of the children.
Although the "Tender Years Doctrine" has yet to be written-off
in New Jersey, most psychological associations have abandoned it
consult out "Child Custody" page for more information
on how custody determinations are made by the courts.
Does a spouse's infidelity have any bearing upon custody determinations?
] [ Return to
While an adulterous spouse's marital might well be unspeakably outrageous
from the perspective of the loyal spouse, it is an emotional concern
with little relevance to the issue of child custody. One possible
impact of a spouse's infidelity on the child custody determination
would be if the spouse had introduced the lover or lovers into the
lives of the children. Another thing that will be taken into consideration
is the character and behavior of the new love interest, to the extent
it affects the children. Certainly, if the new companion is a pedophile,
sex offender, drug addict, alcoholic, violent, abusive, and the
like, this could have a negative effect upon the custody determination
as obtains to the parent who has chosen such an unsavory association.
What are the different types of support that can be obtained in a
] [ Return to
There are two general types of support: Child support, which is
support paid by one spouse to the other for the benefit of the children
and (2) Alimony or spousal support, which is support paid by one
spouse to the other for the maintenance of the other spouse.
How is Child Support calculated?
] [ Return to
Child support is based on Child Support Guidelines in New Jersey.
Generally speaking, it is determined by taking the income of each
of the parties, along with a number of other factors, and then using
various formulae as established 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, in some sense, the more time that a parent spends
with the children, the lower his or her child support obligation
are also several other factors that go into the equation, including
the requirement to pay child care. The only way to make an accurate
determination as to how much the child support obligation will be
is to have all the necessary information available, and then utilize
the guidelines step-by-step, in order to find the definitive amount.
What are the Child Support Guidelines?
] [ Return to
The court has adopted guidelines, which are intended to provide
guidance about what it actually costs to raise children. The Guidelines
fix a range of support that should be paid by both parents, proportionate
to their available incomes. There is a rebuttable presumption that
the Guidelines are correct, providing, for example, that the children
have not reached 18, are not away at college, and provided further
that the combined net weekly income of the parents does not exceed
$2,900; $150,800 combined net annual available income per year (after
subtracting out tax, social security, and other allowable deductions
from gross income). However, child support amounts may be negotiated
above or even below those in the Guidelines amounts - provided just
cause can be shown for going below them. The judge may modify the
levels in the Guidelines if a finding can be made that - due to
the circumstances of a particular family, the Guidelines amount
would be unjust or otherwise inappropriate. As alluded to earlier,
the court may deviate from the Guidelines if the combined net income
of both parties is more than $2,900 per week. The costs of work
related child care and the marginal cost of providing health insurance
for any child, is also factored into the child support calculations.
What if the Guidelines are Inappropriate for My Case?
] [ Return to
If the family's combined weekly net income is greater than $2,900
per week "or for any of the other reasons enumerated in Appendix
IX-A of the Rules of Court, which sets forth Considerations in the
Use of Child Support Guidelines" Judges are to determine child
support by using the criteria contained in the appropriate statute.
This should be done in much the same way as the Judges are required
to determine alimony, child custody, equitable distribution, etc.
to Zazzo v. Zazzo, 245 N.J. Super. 124, 129 (App. Div. 1990):
Legislature has dictated that certain factors must be considered
in setting support. These factors reinforce the distinction between
spousal support and child support in cases not covered by court
rule. N.J.S.A. 2A:34-23 provides:
In determining the amount to be paid by parent for support of
the child and the period during which the duty of support is owed,
the court in those cases not governed by court rule shall consider,
but not be limited to, the following factors:
of the child;
of living and economic circumstances of each parent;
sources of income and assets of each parent;
ability of each parent, including educational background, training,
employment skills, work experience, custodial responsibility for
children, including the cost of providing child care and the length
of time and cost of each parent to obtain training or experience
for appropriate employment;
and capacity of the child for education, including higher education;
and health of the child and each parent;
assets and earning ability of the child;
of the parents for the court-ordered support of others;
debts and liabilities of each child and parent; and
other factors the court may deem relevant.
Pascale v. Pascale, 140 N.J. 583 (1985) the Supreme Court found
that it is within a court's discretion to consider the child support
guidelines and the statutory criteria when determining a child support
award that is in the child's best interests.
Are payments for child care, medical care and other similar costs
included as part of child support?
] [ Return to
The New Jersey Child Support Guidelines, as they now exist, take
into consideration the general basic cost of a household which are:
shelter costs, such a mortgage/rent, utilities;
expenses, such as food and transportation; and
expenses, which include clothing, personal care, entertainment
and other personal items.
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 long must I pay or can I receive child support?
] [ Return to
Child support concludes upon the emancipation of the child or children.
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.
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.
How is alimony calculated?
] [ Return to
Alimony, as opposed to child support calculated pursuant to the
Guidelines, is not as definitive and is based on a number of statutory
N.J.S.A. 2A:34-23(b), New Jersey's alimony Statute provides:
all actions brought far divorce, divorce from bed and board, or
nullity the, court may award one or more of the following types
of alimony: permanent alimony; rehabilitative alimony; limited duration
alimony or reimbursement alimony to either party. In doing so, the
court shall consider, but not be limited to, the following factors:
actual need and ability of the parties to pay.
duration of the marriage.
age and physical and emotional health of the parties.
standard of living established in the marriage and the likelihood
that each party can maintain a reasonably comparable standard
earning capacities, educational levels, vocational skills, and
employability of the parties.
length of absence from the job market of the party seeking maintenance.
parental responsibilities for the children.
time and expense necessary to acquire sufficient education or
training to enable the party seeking maintenance to find appropriate
employment, the availability of the training and employment, and
the opportunity for future acquisition of capital assets and income.
history of the financial or non-financial contributions to the
marriage by each party including contributions to the care and
education of the children and interruption of personal careers
or educational opportunities.
equitable distribution of property ordered and any pay-outs on
equitable distribution, directly or indirectly, out of current
income, to the extent this consideration is reasonable, just and
income available to either party through investment of any assets
held by that party.
tax treatment and consequences to both parties of any alimony
award including the designation of all or a portion of the payment
as a non-taxable payment.
other factors which the Court may deem relevant.
New Jersey Supreme Court in Crews v. Crews, 164 N.J. 11, 26 (2000),
held that "[a]n alimony award that lacks consideration of the
factors set forth in N.J.S.A. 2A:34-23(b) is inadequate, and one
finding that must be made, is the standard of living established
in the marriage." The Court found that "[i]n all divorce
proceedings, trial courts must "consider and make specific
findings' under N.J.S.A. 2A:34-23(b)" Id. at 25.
Appellate Division in Boardman v. Boardman, 314 N.J. Super. 340
(1998) reiterated the application of the principles for determining
alimony as set forth in N.J.S.A. 2A:34-23, noting that the principles
apply whether the spouse seeking alimony is the husband or wife.
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.
are no fixed "guidelines" as there are with regard to
child support. However, based upon computations done by many experienced
divorce attorneys on the heals of findings in contested alimony
cases ending in trial, it is obvious that many judges are using
mathematical formulas to determine spousal support, despite case
law mandating that mathematical formulae not be used.
sitting as Early Settlement Program Panelists often use the formulae
they believe the Judges in their County to be using in making their
spousal support recommendations.
the way to begin calculating alimony - apart from considering the
factors contained in the statute - is to scrutinize the budgetary
requirements associated with running two separate households, compared
with the income generating ability of each of the divorced parties.
This takes some thought and time.
consequences should also be calculated in. But, it can't be emphasized
enough that ALL the statutory factors must be considered in the
determining whether there is an alimony entitlement, what type or
types of alimony will be involved, and what level of payment might
reasonably be agreed to or awarded.
to settle the issue of alimony is one of the major reasons cases
are forced into trial. It is crucial - in any case where alimony
may be in issue - that both parties retain experienced divorce attorneys
to represent them. In most cases involving average circumstances,
mature and well-read matrimonial attorneys should be able to develop
a settlement range for alimony in rather short order.
to settle a case - for instance - because one side feels there is
some entitlement to alimony and the other side maintains there is
not, is nothing short of idiotic in most circumstances. Experienced
divorce attorneys can usually distinguish an alimony case from a
non-alimony case quite quickly.
Are alimony and child support taxable?
] [ Return to
Alimony is taxable to the recipient and deductible for the payor,
unless the support Order states otherwise. The payment of child
support has no tax effect. In most matrimonial cases involving minor
children, where the spouses earn unequal incomes, both alimony and
child support are likely to be ordered.
Is there any way of structuring support payments to optimize tax consequences?
] [ Return to
Definitely. While the amount of tax-free child support, in most
cases, is calculated by using the Guidelines, alimony is not. Alimony
is typically a negotiable issue. If the payor spouse is in a significantly
higher tax bracket than the receiving spouse, the alimony portion
of any support payment will be of significant benefit to the payor
spouse and to the recipient spouse, inasmuch as the recipient spouse
would be taxed at a much lower rate.
the tax consequences of support is one way to improve overall post-divorce
divided family finances, which is often neglected. The manner in
which dependency deductions are taken, use of the Head of Household
filing status, the right mix of alimony versus child support payments
are all considerations to take into account to maximize tax savings.
Both parties should agree to do this with the assistance of a tax
accountant, because cash maximization opportunities could be quite
I receive child support or alimony before I am divorced?
] [ Return to
Yes. In fact, one does not even need to file a Divorce Complaint
in order to obtain support. Instead, a Complaint can be filed for
in a divorce context, while the divorce is pending, support can
be awarded by the filing of a what is referred to as a Pendente
Lite Motion. As it's Latin name suggests, it is used to establish
continuing arrangements pending litigation. After such a motion
is filed, a determination will be made by the Court as to how much
support, alimony or housing, transportation and personal expenses
should be paid pending a final determination of all issues. Other
relief can be requested as well.
How will the marital property be distributed?
] [ Return to
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.
does not necessarily mean that the property will be divided one-half
to each of the parties. New Jersey is not a so-called "community
property" State, where this would necessarily be the case.
In New Jersey, there is no initial presumption in favor of an equal
theory is based upon viewing the marriage as a partnership or joint
enterprise, so that even if one party technically acquired all of
the assets through earned income, while the other was at home and
not working outside the home, the Court would still recognize that
the marriage was, in fact, a partnership and that, but for the fact
that the unemployed spouse was at home keeping the household for
the family, the employed spouse would not have had the opportunity
to earn the income for the marital partnership.
the identity of the person who actually earned the money becomes
largely immaterial and, unless the parties can agree upon a fair
distribution, the Court would distribute all property in a manner
that it deems "equitable."
How will the Court what an equitable distribution of property would
] [ Return to
Equitable distribution means a fair division of the assets and liabilities
acquired during the marriage. The court has the discretion to divide
the assets in any manner that it determines is "fair"
although not necessarily equal.
N.J.S.A. 2A:34-23.1, New Jersey's equitable distribution Statute,
the Legislature has mandated:
every case, the court shall make specific findings of fact and
evidence relevant to all issues pertaining to asset eligibility
or ineligibility, assets valuation, and equitable distribution
including specifically, but not limited to the factors set forth
in this section.
New Jersey's N.J.S.A. 2A:34-23.1 contains 15 specific and 1 general
"catch-all" factor, as follows:
of the marriage.
and physical and emotional health of the parties.
or property brought to the marriage of the parties.
standard of living established during the marriage.
written agreement made by the parties before or during the marriage
concerning the arrangement of property distribution.
economic circumstances of each party at the time the division
of property becomes effective.
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
the children and the time and expense necessary to require 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.
contribution by each party to the education, training or earning
power of the other.
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.
tax consequences of the proposed distribution to each party.
present value of the property.
need of a parent who has physical custody of the child to own
or occupy the marital residence and to use or own the household
debts and liabilities of the parties.
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.
extent to which a party deferred achieving their career goals.
other factors which the Court may deem relevant.
to Painter v. Painter, 65 N.J. 196, 211 (1974),
criteria over the broad spectrum of litigation in this area include:
(1) respective age, background and earning ability of the parties;
(2) duration of the marriage; (3) the standard of living of the
parties during the marriage; (4) what money or property each brought
into the marriage; (5) the present income of the parties; (6)
the property acquired during the marriage by either or both parties
(7) the source of acquisition (8), the current value and income
producing capacity of the property; (9) the debts and liabilities
of the parties to the marriage; (10), the present mental and physical
health of the parties; (11) the probability of continuing present
employment at present earning:, or better in the future; (12)
effect of distribution of assets on the ability to pay alimony
and support, and (13) gifts from one spouse to the other during
marriage. [118 N.J. Super at 335.]
Kikkert v. Kikkert, 88 N.J. 4, 9 (1981), Justice Pashman states
in a concurring opinion: "... the primary purpose of marital
property distribution laws is not to compensate for changes in the
parties' fortunes after they have separated, but to achieve a fair
distribution of what the parties 'lawfully and beneficially acquired'
while they were together."
upon a given party's goals, the party. with the help of legal counsel,
may seek to convince the court that these factors dictate that you
receive the highest possible percentage distribution of assets.
What property is not subject to equitable distribution?
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There are several categories of property not subject to distribution.
The major ones include property acquired before the marriage (or
joint enterprise-type cohabitation), or gratuitous transfers by
way of gifts, devise or bequests from third parties, which were
maintained separately from marital assets.
other words, absent a pre-nuptial agreement, if property is acquired
prior to marriage, it must be kept separately and not allowed to
co-mingle with other marital property. If real property was purchased
or inherited prior to marriage - while it may start out immune to
claims of equitable distribution - should the property be maintained,
improved or prepared with money earned or otherwise received during
the marriage, that property might slowly find its way onto the bargaining
What if certain assets are titled in my name alone... does this insulate
me from an equitable distribution claim by my spouse?
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No. This is a widely held misconception. There may or may not be
an equitable entitlement to titled property by the untitlted spouse,
but keeping the title in one party's name alone accomplishes very
little. Buying property in one's own name during marriage accomplishes
nothing in terms of immunizing it.
are exceptions. One example would be where a party came into a marriage
with a money market fund, kept it entirely separate throughout the
marriage, then received an inheritance during the marriage, which
was not co-mingled with other marital funds, but rather immediately
incorporated into the pre-existing fund. The entire fund - as augmented
by the inheritance - would continue to be immune to claims of equitable
What if I purchased a house prior to marriage and used nothing but
my own pre-marital funds in its purchase. The property was titled
in my name alone. After we married, I agreed to re-deed the home over
to the both of us as tenants by the entireties. What then?
] [ Return to
In most cases, the deeding over would be regarded as evidence of
an inter-marital gift of one-half of the property to the previously
Would I be entitled to Social Security benefits via my soon-to-be-ex-spouses
] [ Return to
There are two basic scenarios by which one spouse can collect benefits
using the other spouse's Social Security record.
1: At the time of the divorce, the ex-spouse is receiving Social
Security benefits. If so, one ex-spouse can receive benefits on
the other ex-spouse's Social Security record provided that the following
requirements are met:
parties were married for at least ten years before their divorce
The spouse applying is at least 62 years old;
The spouse applying is not married at the time application for
benefits is made; and
The individual benefits of the spouse applying are less than 50%
of the ex-spouse's benefits.
2: At the time of the divorce, the ex-spouse is eligible for, but
not receiving, Social Security benefits. In this scenario, the spouse
applying must meet all the requirements in Scenario 1, and the ex-spouse
must be at least 62 years old. To collect under this scenario, the
spouse applying must wait 60 days after the divorce is final to
apply for benefits.
spouse applying would be entitled to 50% of the ex-spouse's benefits
under both scenarios. The ex-spouse's benefits are not reduced by
any payments the spouse applying would be entitled to. (Example:
The ex-spouse is collecting, or eligible to collect, $2,000 per
month. The spouse applying would be entitled to receive $1,000 per
month and the ex-spouse would still be entitled to receive $2,000
per month). The amount of benefits the spouse applying would receive
as a divorced spouse is not affected, in the event the ex-spouse
derivative Social Security benefits are also affected when the derivative
spouse recipient remarries or the other ex-spouse dies. If the derivative
recipient remarries and the other ex-spouse is alive, derivative
benefits will stop one month after the remarriage. If the derivative
recipient spouse remarries and then the other ex-spouse dies, the
derivative benefit recipient will become eligible once again for
benefits, but now, the derivative recipient would be collecting
as a "surviving divorced spouse." The benefits under this
classification are higher than the benefits as a "divorced
spouse." The amount of benefits paid to a surviving divorced
spouses will depend on the survivor's age at the time of the ex-spouse's
death. If the surviving divorced spouse is 60-64, that spouse will
receive a percentage (between 71% and 94% as determined by the survivor's
age) of the ex-spouse's benefits. If the survivor is are 65 or older,
100% of the ex-spouse's benefits will be paid out.
ex-spouse will have to provide the other ex-spouse's Social Security
number when applying for benefits, if attempting to collect under
the other ex-spouse's Social Security record.
Social Security Administration can answer any questions you have
on this matter. Their toll free number is currently 1-800-772-1213.