A couple may decide
not to live together even if they do not plan to divorce.
They may choose to live apart permanently without obtaining
any court order. If they want to have various other issues,
such as support, custody and visitation, decided at that
time as well, they may enter an agreement to that effect in
the manner described below in the discussion of divorce.
They may also have a court decide such issues by commencing
a court action for "Separate Maintenance" or "Divorce from
Bed and Board" (also called a limited divorce). Both these
procedures can resolve the necessary issues while leaving
the couple still married. Issues such as support and custody
can also be decided when a restraining order is sought for
What to Do
Consider whether to
seek marriage counseling and whether to consult an attorney.
Review the steps below regarding preparations for a divorce
and choose those that seem appropriate. If you have decided
not to seek a divorce at this time but need issues such as
support, custody and visitation resolved, begin an action
for custody and support, Separate Maintenance or Divorce
from Bed and Board.
terminates marriage when a court issues a "Final Judgment of
Divorce." In order to bring a legal action for divorce, an
individual must have been a resident of New Jersey for at
least one year. The one-year residency requirement does not
apply if divorce is sought on the grounds of adultery. The
legal grounds in New Jersey for a divorce include the
- Eighteen month separation:
This is the most common ground for divorce. It is
referred to as a "no fault" divorce because neither
spouse needs to prove that the other was responsible for
the break up of the marriage. The law requires that
during the separation the parties have lived in separate
residences, and that there is no prospect of
- Adultery: Either a
heterosexual or homosexual relationship can constitute
- Willful and Continuous
Desertion for Twelve or more Months: A spouses
refusal to engage in sexual relations qualifies as
- Extreme Cruelty: Physical
or mental acts of cruelty that make it improper or
unreasonable to expect an abused spouse to continue to
live under such conditions. There is a waiting period of
three months from the last act of cruelty before a
divorce complaint can be filed.
- Deviant Sexual Conduct: The
conduct must be voluntarily performed and without the
other spouses consent.
- Habitual Drunkenness or
Voluntary Addiction to a Narcotic Drug: This behavior
must last for a period of 12 consecutive months.
- Institutionalization for
Mental Illness: Institutional-ization must run for a
period of at least 24 consecutive months.
- Imprisonment: Incarceration
must last for 18 or more consecutive months, and there
must be no reconciliation if the imprisoned spouse is
released prior to the complaint for divorce being filed.
What to Do (if you are
- Assess your present
- Determine what your
financial needs and responsibilities will be after you
separate from your spouse.
- Educate yourself concerning
the family assets. You will need information about
property accumulated during the marriage in order to
ensure that it is fairly divided. After you separate from
your spouse, this information could be much more
difficult to obtain. You will also need the records to
establish what is adequate support while your divorce is
pending and sufficient alimony and child support payments
once your divorce is final.
- Read and make copies of any
statements relating to the family finances, such as bank
statements, brokerage account statements, wills, mortgage
applications, insurance policies (health and life), any
pension plan, medical and dental plans, and any financial
statements concerning your spouses business.
- Read carefully and copy
income tax returns for the last three years, including
- Keep copies of statements
and receipts for household and family expenses, such as
mortgage or rent payments, insurance premiums, utilities,
repairs, medical and dental care, food and clothing,
transportation, education and child care.
- Keep documentation of
assets in a safe place outside the home.
- Keep as much money as you
can in your own bank account so you have funds available
for legal costs and divorce-related expenses.
- Get a credit card or charge
account in your own name.
- Consider hiring a lawyer.
Some people with little property and few debts have
handled their own divorces, using forms found in
libraries. The clerk of the Family Division in the Court
House in the county where you live can tell you which
forms need to be filed. But a lawyer is a good
investment, especially if property, debts and/or children
are involved. Choose one who is knowledgeable about
matrimonial matters and with whom you feel comfortable.
- Consider using a divorce
mediator if you and your spouse can agree to do so. The
best mediators are usually lawyers who know the law.
Hiring a divorce mediator may save money if it prevents a
prolonged legal battle. The mediator assists both of you,
as a neutral third party, to reach agreement on all the
issues and does not take sides. You should have a lawyer
review any mediated statements.
The Property Settlement
You and your husband
will save time and money if you can enter a written
agreement stating how support, child custody and visitation
issues are to be handled, and how health and life insurance,
property acquired during the marriage, and debts are to be
A court will enforce the agreement
unless it is unconscionable. A spouse who later fails to
comply with the agreement can be ordered to do so by court
order. The agreement will also be made part of the divorce
judgment to govern each partys rights after the
During a divorce
proceeding, all assets acquired during the marriage are
equitably divided between the parties. This does not mean
that the division of assets is equal, but that it is fair
under the circumstances of the particular case. If the
parties do not come to an agreement concerning a division of
the material assets, a court will divide the property.
The law requires
that a judge consider the following factors in making such a
- Duration of the marriage;
- The age and physical and
emotional health of the parties;
- The standard of living
established during the marriage;
- Any written agreement made
by the parties before the marriage concerning a division
of the material property;
- The economic circumstances
of each spouse at the time the division of property
- The income and earning
ability of each party, including educational background,
training, employment skills, work experience, length of
absence from the job market, custodial responsibility for
children, and the time and expense necessary to acquire
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;
- The contribution by each
party to the education, training or earning power of the
- The contribution of each
spouse to the acquisition of the material property,
including the contribution of the spouse as a homemaker;
- The debts and liabilities
of the parties.
- The judge may consider the
- The tax consequences of the
proposed distribution to each party;
- The present value of the
- The need of a parent who
has physical custody of a child to own or occupy the
marital residence and to use or own the household effects
(note: custody in and of itself is not necessarily
grounds for occupying the marital residence);
- The need for the creation
of a trust fund for reasonably foreseeable medical or
educational costs for a spouse or children; and
- Any other factors which the
court may deem relevant.
Alimony and Child
Support payments aim
to maintain the dependent spouse and the children at the
standard of living they had become accustomed to prior to
the separation. Alimony enables the supported spouse to
share in the economic rewards of the marriage, which were
reached as a result of the combined efforts of both spouses.
A court will award alimony based
primarily on the actual need of the dependent spouse, the
ability of the supporting spouse to pay, and the duration of
the marriage. A court must consider the earning capacities,
education, vocational skills and employability of the
parties, and the time and expense needed to educate a spouse
for a return to the labor market. Alimony ends when one
spouse dies, the spouse receiving alimony remarries,
circumstances change and the court terminates the award, or
at such time as a settlement entered into by both parties
states that it will end.
Child support is based on a
childs legal right to be supported according to the
standard of living she had while her parents were together.
Each parent has a legal obligation to contribute towards
child support based on ability to do so. The state has
enacted a law providing for the revocation or suspension of
a drivers, professional or occupational license of a
parent who is more than six months in arrears on child
support payments, has an arrest warrant out for not paying
child support or for not appearing at a hearing to enforce a
paternity or support order, or who has failed to pay a
childs health insurance for more than six months.
Child support obligations end when the child reaches 18;
however, parents may be required to continue to support and
to contribute to the cost of the childs college
education when they are financially able to do so. Support
obligations may also continue past 18 for a disabled child.
Alimony and child support may consist
of either direct payments to the supported spouse or
non-cash indirect payments, such as rent, mortgage payments,
property taxes or any other expenses associated with a home.
Support orders may be temporary or permanent.
A new law requires that the
responsibilities of both parties toward raising the children
must be considered when the amount of alimony is set.
Another new law requires a spouse who collects alimony to
notify the other spouse and any collection agency for the
alimony if she remarries.
What to Do
provide for the time between the filing of a matrimonial
action and a final court hearing. If your spouse is not
voluntarily providing you and your children with adequate
support, apply to the court for an order requiring support
during this period. Your application can also request that
your spouse pay your attorney fees and that the issue of
custody of your children and visitation be considered. You
will need to support your request with documentation
concerning your living and household expenses.
Make sure that the support requested
is sufficient to meet all of your bills and your
familys bills: this level of support is often ordered
to continue after the divorce is final. Therefore, do not
overlook any personal or household expenses when making a
request for temporary support.
After your divorce, if your ex-spouse
fails to comply with support obligations, you can apply to
the court for an order requiring him to pay. If he then
violates this order, a judgment can be entered and you can
garnish his wages or levy against his property for the
judgment amount. The court can also require your ex-spouse
to pay future support through the county probation
department; a probation officer will take appropriate
actions to enforce the support order.
Child Custody and
If both spouses
agree on who will have custody of their children, a court
will not interfere with the decision as long as it is in the
best interests of the children. However, when both parents
want custody, the court must determine which parent can
provide the best home for the children. Neither parent has
an automatic right to the children. As a practical matter,
the court will generally award custody to the parent who has
been the primary caretaker (the parent who actually dressed,
fed and otherwise cared for the child). Very young children
are usually found to be better left with the mother
especially if she has been the primary caretaker. If the
child is old enough to have an opinion, the childs
preference may be taken into consideration.
In many cases, where appropriate, the
court will award joint legal custody in which both parents
share the right and responsibility to make major decisions
regarding the childs welfare. The parents then may
alternate physical custody of the child, depending on the
needs of the parents, such as their work schedules, and the
childs school and after school activities. Joint
custody will only be appropriate when it is in the best
interests of the child
In most cases where a parent does not have
legal custody of the child, he will be given visitation (now
officially known as "parenting time") rights. Usually
visitation is liberally granted, as long as it is in the
best interests of the child. A non-custodial parent cannot
be denied the right to visitation because his child support
obligations have not been met.
What to Do
When support is not paid,
apply for court enforcement of the provisions of the
courts prior order. Do not withhold visitation. A
court may impose sanctions for violation of a visitation
order and this may consist of community service,
compensatory visitation time, monetary compensation and
counsel fees. The court can also impose santions against a
parent who does not live up to parenting time
Custody and visitation may be
restricted or terminated when the relationship of one or
both parents with the child causes emotional or physical
harm to the child, or when the parent is shown to be unfit,
or when special temporary circumstances require.
Once a judgment for
divorce has been granted by the civil court (Superior Court
of New Jersey), a party may wish to annul or terminate the
marriage according to the rules of her religious faith. The
two most common proceedings of this type are the Jewish Get
and the Catholic annulment. Consult your clergy for
information. You may want to include provisions in your
divorce settlement so a court can enforce agreements
concerning religous termination.
While the judgment of
divorce terminates your rights to coverage under your
spouses insurance policy, your right to continue
coverage under the COBRA law at the group rate is discussed
in the chapter on Health Issues. A recent law provides that
when custody, visitation or support of a minor child is at
issue in an action, the party who has been paying any part
of health, disability, home or life insurance up to that
time must continue doing so. If coverage changes because of
a change in employment, that party must notify the other
party, who may then petition to have the court re-allocate
Even if your
ex-husband remarries, you are entitled to social security
benefits based upon his earnings if you were married at
least ten years.