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Most Family Law issues address separation and divorce, alimony, custody, support and visitation of
children. If you are currently contemplating a divorce, it would be in your best interest
to contact an attorney before you formally separate from your spouse. This can help ensure
that you are adequately protected, give you time to gather necessary information (possible evidence) while
you still have a chance, prevent the possibility that marital assets are ruthlessly dissipated by the other
spouse, and will help make this otherwise tumultuous period a little more tolerable knowing that your legal
rights are being met.
New Jersey has adapted a "no fault" cause of action for divorce if you have been separated from your spouse
for eighteen (18) consecutive months. If you have not been separated for eighteen consecutive
months, or if you do not wish to wait that long, you must have grounds for divorce. This standard
is liberally construed to give a spouse who wants to be divorced the power to do so. Most divorces
allege mental and/or physical cruelty, as well as adultery, as grounds for divorce.
After the "cause" for divorce is established, there are essentially three remaining points of
contention; (1) equitable distribution of marital assets, (2) support and maintenance, and (3) child
custody and visitation.
Equitable Distribution
Support / Maintenance
Custody and Visitation
Contested and Uncontested Divorces
Mediation
Equitable Distribution
Equitable distribution is designed to distribute fairly all the marital assets acquired during the marriage between the spouses. Although the courts typically strive to divide the assets 50/50, there are a number of factors of consideration which can be employed to increase your share in equitable distribution.
Support / Maintenance
Depending upon the relative educational and financial positions of the parties, as well as the length of the marriage and standard of living during the marriage, a spouse may be entitled to maintenance and/or alimony for a stated period of time. Maintenance and alimony are designed to ensure that there is not a significant disparity in lifestyles between the spouses after the divorce. Typically, the courts seek to insure that each party will continue to live in a similar lifestyle as to which they have been accustomed to during the marriage. Certain alimony is also available to a spouse who has foregone an education and a career for the sake of the other spouse and/or raising the family. A spouse may also be entitled to a future share in the other spouse's potential income.
Custody and Visitation
It is very common that upon a divorce, the parties will have "joint legal custody" over the children of the marriage. Legal custody means that each party is the legal guardian of the minor children and that they are to be consulted and have a substantive input towards the major decisions concerning the upbringing of the children. These decisions usually involve the educational, spiritual and medical decisions which affect the children. If it is determined that one of the parties is, in fact, unfit to be a parent, then the other party, if deemed to be fit, may be entitled to sole legal custody. When a court is forced to make any of these decisions, the prevailing inquiry is always what is in the best interests of the children.
Although one spouse will typically retain physical custody (which means that the child lives with one parent rather than the other) the other parent will be entitled to reasonable visitation. Many times this means alternating weekends, a few days during the week, alternating holidays and physical custody during the summer.
Contested and Uncontested Divorces
A divorce case is initiated by the filing of a complaint. Sufficient grounds for divorce is set forth by state statute, (ie. 18 month separation, adultery, etc.). Divorces are either contested or uncontested. In an uncontested divorce, the defendant does not object to the divorce itself and accepts the grounds selected by the plaintiff. A contested divorce occurs when a defendant denies the allegations and the grounds for divorce selected by the plaintiff. Typically a defendant will counter claim for his/her own grounds for divorce. This means that the cause for divorce is contested. Generally, although parties have the right to contest, if one wants to be divorced they will be.
Besides the allegations and grounds for divorce, cases can be contested or uncontested with regard to the substantive matters within the divorce. A divorce may embrace issues of the selling of the house or buying out of a marital equity portion, child support alimony, allocation of deaths and personal property, custody visitation, etc. Parties should strive to resolve these matters without the necessity of a trial. By far, the vast majority of cases will settle at various stages of the Divorce. It is naturally, the clients best interest to resolve the case early in order to avoid additional legal fees. If the matter is settled, a property settlement agreement will be drafted and executed by both parties and will be accepted by the court at the final divorce hearing. If the matter is not settled, any and all of the above issues of contention will be ruled upon by a judge after hearing adequate testimony and considering evidence.
Mediation
Mediation is a dispute resolution process in which an impartial third party, the mediator, facilitates discussions between the parties involved in a dispute in order to assist them in reaching a mutually acceptable solution. The mediator, unlike a judge or arbitrator, does not make a decision or decide who is right or wrong. The ultimate decisions makers remain the parties themselves. Mediation is successful in many types of cases including family matters, business disputes, civil, equity and probate matters. Mediation reduces the time and expense parties incur in litigation, and allows for confidentiality and unique solutions to disputes.
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