Divorce FAQ's

An Intro Guide on Divorce and Separation

1. What is a legal separation?

Technically, there is no such “animal” in New Jersey called a legal separation. Some states have legal proceedings that are tantamount to a legal separation. However, New Jersey does not have a separation docket classification or case track for legal separations. A separation simply means that you and your spouse have been living separate and apart from each other. It is important to that you can still be considered separated even if you live under the same roof or otherwise. A separation can occur either by a mutual agreement between the parties, or simply by one spouse leaving or being kicked out of the marital home. Under some circumstances, you may even considered separated even though you and your spouse are still living in the same home.

2. I can’t stand my “demon” husband anymore. Can I stop my husband from entering into our home?

Your husband has a legal right to live the marital home unless a court decides otherwise. If you lock your husband out, then he may be able to file a motion with the family court to obtain a court order to re-enter marital home.

3. What if my spouse has abused me?

If there has been any actual or threatened abuse then your spouse may be ordered by the court to leave your home and to stay away from you on a permanent basis. To accomplish this feat, you will have to file an application for a restraining order, and request that a judge remove your spouse from the marital home.

4. What is the role of a lawyer?

If you and your spouse are having marital problems, then your lawyer can assist you in three areas. First, an attorney will advise you of your legal rights and duties. Second, he or she will help to you negotiate an agreeable property settlement agreement (PSA). The PSA is a contract that resolves all of your legal disputes that arise between you and your spouse as a result of a separation or divorce. Finally, your lawyer is your representative in enforcing your legal rights in the family curt. Moreover, your legal counsel can defend you you if your spouse files DV case or a complaint for divorce against you.

5. What is a property settlement agreement?

After a husband and wife become separated, especially if they intend to pursue a divorce, then it is advisable for them to enter into a written agreement to provide for the following:

a. The equitable distribution of any of any real estate and personal property;
b. To establish child support and any spousal spousal;
c. To determine which spouse is responsible for any debts and legal fees;
d. To make sure that all health insurance and life insurance policies are kept current; and
e.  To develop a parenting plan for the custody and visitation of children.

A property settlement agreement is simply another form of a contract. Nonetheless, the PSA may be enforced with the full effect of a court order. A court order is very powerful because if you don’t comply with it then the judge may issue an arrest warrant. Many of the provisions in the PSA that address visitation and child support can modified by the court if there are a change of circumstances. Child custody can be changed/modified if there is good cause. The PSA is written by the attorneys representing you and your spouse after all of the marital issues have been negotiated and resolved.

7. What happens to the marital home during the divorce case?

Most married couples own their marital home as tenants by the entirety. This form of joint ownership means that neither spouse can sell the property during the marriage  without the consent of the other. Upon a divorce, however, unless the parties have a written prenuptial agreement providing for the equitable distribution of the property, the court has the legal power to divide the marital home based on equitable principles. This means that the court will take many factors into account when arriving at a fair equitable distribution. However, please keep in mind that the term “equitable distribution” is a term of art. What is a fair court ruling to one spouse may “shock the conscience” to the other spouse. Therefore, it is always advisable to reach a settlement so that you won’t have to rely on a judge’s decision.

When equitably distributing any marital property, the family court takes into consideration both of spouse’s economic and non-economic contributions to property that was acquired during the marriage. If neither you and your spouse nor the court divide the property, then the nature of your ownership automatically changes after the divorce, and you both become tenants in common.

8. What assets are considered to be marital property?

New Jersey divorce law provides that all property acquired by either spouse during the marriage is considered to be marital property. Nonetheless, there are certain exceptions like gifts and inherited property. These assets are not considered to be marital property, regardless of in whose name the property is held. It should be noted that any increase in value during the marriage of gifts through third parties, inherited property, and premarital property that remain in one party’s name, will also be considered marital. Any marital property that is not divided in the property separation agreement will ultimately be equitably distributed by the court.

9. Who owns the furniture and the household goods?

Any household items, such as drapes, carpets, furniture and appliances and other personal effects are generally not titled in either spouse’s name. Unless you can show that the household goods was acquired prior to marriage, by gift from a third party, or belonged solely to you as evidenced by a valid agreement between you and your spouse, then New Jersey law treats all such property as being jointly owned and used for the benefit of both spouses, regardless of who actually paid for it. As part of the divorce, the court may consider these items as marital property and then distribute them accordingly.

10. What about the bank accounts?

If bank accounts are acquired during the marriage, then no matter whose name is on the account, you are both considered to be c0-owners of the funds. If one spouse withdraws all of the money out of a bank account, then he or she may have to account to the other for the money, no matter who originally put the funds into the account or if the account is titled in only one name. As part of the divorce, the court may consider the bank accounts as marital property and equitably divide the funds, regardless of whose names were on the accounts.

11. What If I don’t want to get a divorce?

If the divorce is based on no-fault grounds, then the only defenses are showing that you have not lived separate and apart for eighteen months, or that the marriage is not irretrievably broken, and you don’t have any irreconcilable differences.

12. What terms will be incorporated into the final divorce judgment?

When the court issues a final judgment of divorce it may also include other legal matters if they were raised in prior legal proceedings. For instance, any past child support award(s) that were issued in a FD case, or a final restraining order entered that was entered in a FV case may also be included into a divorce judgment. Some other terms that are included in a final judgment of divorce include the equitable distribution of any marital property and other property interests; child custody and visitation; child support, alimony; and enforcement of agreement(s) voluntarily entered into by the parties.

13. Who pays the attorney’s fees?

The court has the power to make a pendente lite award of counsel fees to the dependent spouse. Additionally, in the final judgment of divorce, after all of the marital assets have been divided, the court could order the parties to pay their own costs and fees, or it may divide these costs and expenses equitably between the parties.

14. What is an annulment?

An annulment may be sought for marriages that are by law invalid or which may be declared invalid by a court. A marriage is a contract, and if either individual was unable to enter the contract because of intoxication, being under age, or fraudulent inducements, the court may determine that no contract of marriage ever existed. Please keep in mind that annulments are much more difficult to prove than the grounds for a typical divorce. Moreover, the legal fees for an annulment are higher than for your average divorce case.

15. How can I help out my children in the divorce process?

You should always keep children out of the divorce conflict! The problems should be worked out between you, your spouse, and your attorneys, and not through your children. Additionally, children often feel that they are the cause of the problems and they must be reassured that this is not the case. These are very difficult times for you and your family.

16. What should I do if I am served with a divorce complaint?

A divorce case is just like any other lawsuit. It starts with a complaint filed in the family court. Thereafter, the divorce complaint and several other forms and served on the person against whom it is filed. If you do not respond, then the divorce case may proceed without you being represented or having your rights protected. You should consult an attorney immediately upon receiving a divorce complaint. If you feel that you cannot afford an attorney, then you should contact the community legal services in your county.

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