When a person contemplates divorce, he or she usually has many questions about the process. Unfortunately, going through a divorce can cause anxiety because no matter which party wants the divorce, it destroys the family unit and is probably one of the most traumatic events in one's life. In my experience as a matrimonial practitioner, the following questions are among the most frequently asked:
1. Can I make my spouse move out of the house after I file for divorce?
In the absence of domestic violence, the courts will not order either party to permanently move out of the house during the pendency of the divorce.
2. What are the most common grounds for divorce?
Although New Jersey is really a no-fault State, the most common ground for divorce is still extreme mental cruelty. In New Jersey, one does not have to prove the allegations that are made in the Complaint for Divorce. Extreme cruelty is a totally subjective cause of action meaning that if one spouse believes that the other has acted with extreme cruelty, that is adequate for the court.
The true no-fault divorce requires that parties live separate and apart for a continuous period of 18 months. It is not adequate for the spouses to live in separate bedrooms in the same residence. They must live in two different residences, and at the end of the 18 month period, one of the parties files a Complaint for Divorce. A new cause of action has recently been created called irreconcilable differences. In this action, the parties are required to live seperate and apart in two different residences for six consecutive months.
3. Does the court care who is at fault in causing the divorce?
The court does not care about which party is at fault. The court does not attempt to take the place of a social worker or psychiatrist in dealing with fault and assessing blame. The court deals with custody issues, financial matters, division of property and the issue of domestic violence.
4. How long does a divorce take?
The length of time that it takes to get divorced varies depending upon the actions of the parties involved in the case. The length of time could also vary depending upon in which county the divorce is filed. If the parties are relatively amicable and are able to expeditiously resolve matters with the assistance of their attorneys, the divorce will be concluded much more quickly than if the parties are very angry and hostile towards one another.
5. Will I have to sell the house?
The courts routinely order houses to be sold. Sometimes the parties agree between themselves that a wife and children can stay in the house for a fixed number of years and at the end of that time, the house will be sold. The net equity will be split equally between the parties. In the absence of such an agreement, the court most likely will order the house to be sold.
6. What is the typical arrangement regarding custody of the children?
Most parties have joint legal custody of their children with one of the spouses having residential custody. Joint legal custody means that the spouses must consult with one another regarding the major decisions affecting the children's health, education, religious training and general well being. The residential custodial parent makes the day to day decisions concerning the upbringing of the children. Parties usually alternate major holidays and holiday weekends and share the children's Christmas and school vacations. The non-custodial parent may typically have the children for several weeks of extended time during the summer.
7. Can I permanently leave the State of New Jersey with the children?
A divorced person may not permanently remove the children from the State of New Jersey without the consent of the former spouse or the consent of the Court after a hearing. If a spouse consents to the removal of the children, he or she might bargain to pay lower child support. The courts will consider the impact of the move upon the visitation and time sharing of the children with the non-custodial parent and whether or not the move is in the best interests of the children.
8. Is there a formula for child support and alimony?
There is a formula for child support. The courts are mandated to follow the child support guidelines which are based on the income of both parties. The new guidelines, which became effective in September 1997, go up to joint earnings of $150,000. Alimony must be calculated before child support and is considered the income of the party receiving the alimony. Alimony is deductible for taxes by the party paying alimony. With respect to alimony, there is no mathematical formula. The court considers the factors in the statute. Some of those factors are the length of the marriage, the age of the parties, the health of the parties, the job skills, work history and educational background.