Divorce

No-Fault and At-Fault Divorce in New Jersey

July 6, 2023 by David Lipshutz Leave a Comment

How No-Fault Divorce Works in New Jersey

Though every state allows some form of “no-fault” divorce, there are 17 states where it’s the only basis for terminating a marriage. In 33 states, including New Jersey, a no-fault divorce is one of the options available to parties seeking to dissolve a marriage.

New Jersey Allows Both No-Fault and Fault Divorces

When you file a complaint for divorce in New Jersey, you must provide a reason why the bonds of marriage have been broken. Under the law, the reasons stated are considered to be the “grounds” for divorce. Those grounds are generally considered to indicate one of two things:

Neither party was expressly responsible for the breakdown of the marriage. When this is the case, the parties typically cite “irreconcilable differences” as the basis for divorce. Parties who allege irreconcilable differences must state that such differences have been there for at least six months.
One of the parties engaged in specific conduct that made it difficult or impossible for the other party to stay in the marriage. Such a proceeding will generally be referred to as an “at-fault” or “fault-based” divorce. In a fault-based divorce action, the party alleging fault must provide testimony or other evidence of wrongdoing.

What Are the Common Grounds for a Fault-Based Divorce in New Jersey?

New Jersey law allows a party to a divorce to allege one or more of the following causes for the breakdown of marital bonds in an at-fault proceeding:

Marital infidelity or adultery
Sexual behavior considered deviant by a reasonable person
Maintenance of separate residences for at least 18 months
Physical or sexual abandonment (desertion) for a period of one year
Addiction to drugs or alcohol for at least one year without actively seeking treatment
Extreme cruelty, such as physical or emotional abuse

Why Would You Choose an At-Fault Divorce Over a No-Fault Divorce?

People who can prove that the other spouse engaged in wrongful or harmful behavior may have an advantage in a custody or parenting time dispute. Wrongful behavior does not help in financial issues.

Most divorcing people in NJ choose to file on irreconcilable differences grounds, but it’s an individual decision.

Contact the Law Office of David M. Lipshutz

We will only take your case if we know we can help. For an appointment, contact our office online or call us at 856-627-1990. We are available to meet with you Monday through Friday, between 9 am and 5 pm.

Filed Under: Divorce Tagged With: No-Fault and At-Fault Divorce in New Jersey

Contested vs. Uncontested Divorce in New Jersey

June 9, 2023 by David Lipshutz Leave a Comment

How the Processes Differ

When you’ve decided to terminate your marriage by filing for divorce, the proceedings can either be “contested” or “uncontested.” What is the difference between these two approaches? How does the process for finalizing your divorce change if it’s contested, rather than uncontested?

What Is an “Uncontested” Divorce in New Jersey?

An uncontested divorce is one where both parties are in agreement about the key issues related to the dissolution of the marriage. Including:

How physical and legal custody will be set up, as well as when the non-custodial parent will have visitation
Who will pay child support and how much will be paid
Whether alimony/spousal support is warranted and, if so, how much will be paid and for how long
How the parties will allocate the debts and assets accumulated during the marriage

Even though the parties may be in agreement on all matters, there are still steps that must be followed to legally terminate the marriage:

A divorce complaint must be filed with the court
A copy of the complaint must be served on the other spouse
The other spouse may choose to answer the complaint. It no answer is submitted, the party who filed the initial complaint may ask the court for a default judgment
The parties may request that the court issue a final divorce decree without a hearing by submitting a signed and notarized settlement agreement

What Is a Contested Divorce in New Jersey?

If you or your spouse cannot agree on any issue related to property distribution, custody, visitation or support, and need the court to resolve those issues for you, your divorce proceeding will be labeled as “contested.”

In a contested divorce proceeding, a complaint and answer must also be filed. The court will initially help you look for ways to resolve your differences without going to trial. That may involve either mandatory or voluntary mediation. If those attempts fail, the court will schedule a trial and make decisions regarding any disputes. The Court’s decisions are binding on the parties.

Contact the Law Office of David M. Lipshutz

Filed Under: Divorce Tagged With: Contested vs. Uncontested Divorce in New Jersey

Does New Jersey Impose Travel Restrictions for Minor Children in Divorce?

January 12, 2023 by David Lipshutz Leave a Comment

What Limits Are There on Traveling with Minor Children

We live in an increasingly mobile society, and that affects families of divorce in New Jersey. In the aftermath of a marital breakup, one of the parents may want to move, often for a better job or to be closer to family, or perhaps for a fresh start. Are there restrictions on the ability of a custodial parent to move away from the non-custodial parent? Are there limitations on either parent with respect to taking a minor child to another state?

Can a Custodial Parent Move Away from the Non-Custodial Parent after a Divorce?

The rules governing the relocation of a divorced parent of minor children differ, based on whether the parent is the custodial parent or the non-custodial parent. There are currently no laws in New Jersey that prevent a non-custodial parent from moving to another part of the state or from moving out of state. A custodial parent, however, may not do so without the consent of the other parent or the approval of the Court.

A custodial parent may relocate to another state with a minor child with the non-custodial parent’s consent, but should obtain that permission in writing. That’s not required, but will simplify matters if there’s a dispute. If the non-custodial parent refuses to grant permission to relocate, it may only be done pursuant to a court order. The Court must decide if the advantages to moving for the child outweigh the disadvantages.

Can Either Parent Take a Minor Child Out of New Jersey without Permission or Court Order?

A custody order may identify what must happen before a custodial or non-custodial parent can travel out of state with a minor child. In the absence of language in the divorce decree, either parent may take a minor child out of the state of New Jersey temporarily without the express consent of the other parent.

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Filed Under: Divorce Tagged With: Traveling with Minor Children

Equal Shared Custody—Pros and Cons

March 4, 2022 by David Lipshutz Leave a Comment

The Advantages and Disadvantages of 50/50 Parenting

Historically, in the aftermath of a divorce, when there were minor children in the home, one parent was granted primary physical custody and the other parent was accorded rights of visitation, typically bringing the child into his or her home every other weekend, alternating holidays and on other agreed-upon occasions. That approach, however, is changing, as more an more states are enacting laws that allow for “equal parenting,” where the minor children spend half of their time with each parent. New Jersey allows such an arrangement.

On it’s face, it may seem like the most equitable way to resolve custody issues. Typically, both parents want to play a meaningful role in the growth and development of their children. But equal parenting does not come without its challenges and its detractors. Let’s look at the advantages and disadvantages.

The Benefits of Equal Shared Parenting

Studies indicate that when minor children spend approximately the same amount of time with each parent:

They have higher self-esteem, better school performance, and better emotional, behavioral and physical development
They have a broader perspective on the world, due to the differences inherent in each household
There are fewer gender-based assumptions about parenting for all parties involved
Parents tend to work more cooperatively, provided there is no fundamental conflict or animosity

Opponents of equal shared parenting fear that:

Sharing custody equally typically eliminates child support and may leave children without adequate financial resources
Children may struggle to have a sense of belonging anywhere, feeling instead that they are visitors in both homes
Where there is a fundamental level of discord, the frequency of contact between the parents can be problematic
Mandating that the child spend an equal amount of time with each parent does not accurately replicate what happens in most intact homes…it’s customary for a child to spend significantly more time with one parent than the other.

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Filed Under: Divorce Tagged With: Advantages and Disadvantages of 50/50 Parenting

The Allocation of Retirement Assets in a New Jersey Divorce Settlement

November 1, 2021 by David Lipshutz Leave a Comment

Can Retirement Assets Be Divided between the Parties?

Your marriage is irretrievably broken and divorce is the best pathway forward. You’ve built up a substantial retirement plan, but it’s only in your name. Is it protected from distribution to your spouse in the property settlement? Are there any special conditions that must apply?

The Right to a Portion of Qualified Retirement Plan Assets

Under the equitable distribution principles in place in New Jersey, both parties to a marriage are entitled to receive a portion of any assets acquired during the marriage, regardless of how the property is titled. Accordingly, the fact that all retirement assets are held in the name of one spouse will not prevent those assets from being divided between the parties. One caveat—only those retirement assets that were contributed and accrued during the marriage will be subject to equitable distribution. Any retirement assets contributed or accrued before the marriage are generally exempt.

The distribution of retirement assets must be carefully handled or one or both parties may incur tax consequences. As a general rule, the way those potential problems are avoided is with the use of a Qualified Domestic Relations Order (“QDRO”), a court order that directs the administrator of any retirement assets to transmit a portion of them to the other spouse. The QDRO must be signed by the judge to be legally binding.

A QDRO is not required, however. The parties may include language in the marital settlement agreement allowing the owner of the retirement funds to keep all of them, typically in exchange for conveying other marital property of similar or equal value to the other spouse.

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Filed Under: Divorce Tagged With: Divorce Settlement

A Child’s Best Interests in New Jersey Divorce Decisions

September 6, 2021 by David Lipshutz Leave a Comment

The Factors the Court Considers

When you file for divorce in New Jersey, and there are minor children living at home, issues of custody, visitation, and support must be resolved, by either agreement of the parties or intervention of the court. As a general rule, when deciding issues that affect minor children, the court employs the standard of “the best interests of the children.” What does that mean? What factors will the court consider when attempting to discern the best interests of the child?

The Best Interests of the Child

In New Jersey, it has long been assumed by the courts that the “best interests” of the child are served by having both parents actively involved in the lives of their children. Exceptions exist where there is evidence of abuse or neglect on the part of one parent, or indication that one parent has carelessly or intentionally put the child in harm’s way.

No single solution meets the best interests of every child. The best course of action is determined on a case-by-case basis, using the following criteria:

The prior relationship and interaction between the child and each parent
The willingness of the parents to work cooperatively to promote the best interests of the child
The ability of the parents to communicate and reach agreement on issues involving the child
The safety of the child when spending time with each parent
Any history of domestic violence or abuse by either parent
The needs of the child
The stability of each parent’s home environment
The fitness of each parent to care for minor children
Each parent’s commitment to the quality and continuity of the child’s education
The job responsibilities of each parent
The geographic proximity of each parent’s home to the child’s school, friends, and normal daily life
The age and number of children involved
The preferences of the child, if the child is at least 12 years of age

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Filed Under: Divorce Tagged With: Child's Best Interests

Annulments in New Jersey—An Overview

September 9, 2020 by David Lipshutz Leave a Comment

What Is an Annulment? How Do You Annul a Marriage in New Jersey?

If your marriage isn’t working, and there’s little prospect for putting things back together, you might consider filing for divorce. But what about getting an annulment? What is an annulment? How does it differ from a divorce? What are the legal requirements for getting an annulment?

Annulment vs. Divorce

Similar to divorce, annulment is a legal procedure that terminates a marriage. Unlike a divorce, though, an annulment treats the marriage as if it never took place. When your marriage has been annulled, you can truthfully indicate on job applications or other documents that you’ve never been married.

It’s important to understand that there’s a difference between legal, or civil, annulment, and religious annulment. A religious annulment is typically granted by a church but has no legal effect.

How Do You Qualify for an Annulment in New Jersey?

A civil annulment is available in limited circumstances. To qualify for an annulment, one of the following circumstances must be proven:

You or your spouse were not of legal age (i.e., under the age of 18) when you were married, and you have not had sexual relations since turning 18.
You or your spouse entered the marriage because of lies or fraud committed by the other spouse.
You lacked the mental capacity to understand, at the time of marriage, that you were getting married.
You married under duress or undue influence.
You and your spouse are too closely related to be married under New Jersey law.
One spouse was legally married to another person at the time of the wedding.
Incurable impotence by one party at the time of marriage.

You must be a resident of New Jersey when you file for an annulment.

How Do You Get an Annulment in New Jersey?

To annul a marriage, you must file a Complaint for Annulment with the court and have a copy served on your spouse. If your spouse agrees to the annulment, an order will be issued without a hearing. However, if your spouse contests the request for annulment, a judge will hold a hearing,take testimony, and consider evidence to determine whether an annulment is appropriate.

Contact an Experienced New Jersey Family Law Attorney

At the law office of David M. Lipshutz, we won’t take your case unless we know we can help. For a private meeting, contact our office online or call us at 856-627-1990. We are available to meet with you Monday through Friday, between 9 a.m. and 5 p.m.

Filed Under: Divorce, New Jersey Law Tagged With: new jersey lawyer

Dividing Business Assets in a New Jersey Divorce

August 21, 2020 by David Lipshutz Leave a Comment

Are Business Assets Part of the Marital Estate?

In New Jersey divorce proceedings, the legal principle of equitable distribution applies to the division of marital debts and assets. Equitable distribution mandates that property accumulated during the marriage be “fairly” allocated upon its dissolution, but that does not mean the property must be divided equally. Assets subject to equitable distribution include real and personal property, financial accounts and investments, retirement assets, and business interests.

What Business Assets Are Part of the Marital Estate?

When determining whether a business asset belongs in a marital estate, the first question is whether it was acquired before marriage by only one party (in which case, it’s considered separate property) or acquired during the marriage (in which case, it’s marital property). Business property also can be separate property if acquired after the filing of a divorce complaint. Accordingly, any business interests that one spouse held or owned prior to marriage, or after filing for divorce, remain the sole property of that party.

It’s important to understand, though, that business property brought into the marriage by one party can become marital property, depending on how it’s used, created, or treated during the marriage. For example, suppose one spouse solely owns and operates a business before marriage, and then, once married, the other spouse quits their job and invests time, money, or energy into developing the business. If it can be shown that both parties directly participated in growing and increasing the value of the business during the marriage, the court might consider it a marital asset.

Contact an Experienced New Jersey Family Law Attorney

Filed Under: Divorce Tagged With: divorce marital assets

Termination or Modification of Alimony in New Jersey

July 9, 2020 by David Lipshutz Leave a Comment

Ways to Change or End an Alimony Order

Alimony is still ordered in New Jersey divorce cases, though it’s granted far less often than it used to be. Alimony is often set up as a temporary means of support during a period when the recipient completes the training or education necessary to become self-sufficient. Alimony also can be permanent; however, there are ways to modify or even terminate a permanent order of alimony. Either party can ask the court for a change in alimony, but the request must be in writing, and the other party must have an opportunity to contest the proposed modification.

The Effect of Remarriage on a Spousal Support Order

The parties may agree in a divorce judgment that alimony ends when the receiving party remarries. If the order does not address remarriage, then under New Jersey state law, alimony terminates upon the remarriage of the recipient. The remarriage of the paying party rarely provides grounds for modification or termination of spousal support.

Cohabitation as a Basis for Reducing or Terminating Alimony

The parties to a divorce can stipulate in the divorce decree that alimony ceases if the recipient cohabitates or lives with a new partner. However, even if the divorce order is silent on the issue of cohabitation, a long-term romantic relationship, where the couple shares living space and finances, can be the basis for modification or termination of spousal support. That won’t happen automatically, though. The party seeking to change the alimony order must file a motion, and the court will hold a hearing and make a decision.

Contact an Experienced New Jersey Family Law Attorney

Filed Under: Divorce, Divorce & Family Law Attorney Tagged With: Alimony, divorce

Divorce from Bed and Board in New Jersey

June 10, 2020 by David Lipshutz Leave a Comment

What Is It? Why Would You Choose It?

If you’re experiencing difficulties in your marriage, but you’re not certain that divorce is the answer, there’s a fairly unique process in New Jersey, known as “divorce from bed and board,” that may be a good solution. Also known as a “limited divorce,” it’s not really a final divorce but more akin to a legal separation.

How Does Divorce from Bed and Board Work?

To put a divorce from bed and board in place, both parties to the proceeding must agree to that approach. The grounds stated for the divorce will be just like those for a traditional divorce, but with divorce from bed and board, the parties remain technically married under New Jersey law. In addition, the parties are limited with respect to their acts:

Neither party can remarry without getting a final judgment of divorce and thereby converting the limited divorce to a full one.
The parties cannot acquire property as a couple while the divorce from bed and board is in place. The parties can, however, continue to jointly own property acquired before the divorce from bed and board.
Rights to property in an estate, or to take an elective share in the estate of a spouse, are not preserved when a divorce from bed and board is put in place.

Why Choose a Divorce from Bed and Board?

Perhaps the most compelling reason to opt for this approach is that it allows a spouse to continue to obtain health insurance coverage from the other party’s employment benefits, which is permissible because the parties are still technically married.

A divorce from bed and board can serve as a trial separation without the consequences of a full-blown divorce.

Contact an Experienced New Jersey Family Law Attorney

Filed Under: Divorce Tagged With: Divorce from Bed and Board

How No-Fault Divorce Works in New Jersey

New Jersey Allows Both No-Fault and Fault Divorces

What Are the Common Grounds for a Fault-Based Divorce in New Jersey?

Why Would You Choose an At-Fault Divorce Over a No-Fault Divorce?

Contact the Law Office of David M. Lipshutz

How the Processes Differ

What Is an “Uncontested” Divorce in New Jersey?

What Is a Contested Divorce in New Jersey?

Contact the Law Office of David M. Lipshutz

What Limits Are There on Traveling with Minor Children

Can a Custodial Parent Move Away from the Non-Custodial Parent after a Divorce?

Can Either Parent Take a Minor Child Out of New Jersey without Permission or Court Order?

Contact the Law Office of David M. Lipshutz

The Advantages and Disadvantages of 50/50 Parenting

The Benefits of Equal Shared Parenting

Contact the Law Office of David M. Lipshutz

Can Retirement Assets Be Divided between the Parties?

The Right to a Portion of Qualified Retirement Plan Assets

Contact the Law Office of David M. Lipshutz

The Factors the Court Considers

The Best Interests of the Child

Contact Attorney David M. Lipshutz

What Is an Annulment? How Do You Annul a Marriage in New Jersey?

Annulment vs. Divorce

How Do You Qualify for an Annulment in New Jersey?

How Do You Get an Annulment in New Jersey?

Contact an Experienced New Jersey Family Law Attorney

Are Business Assets Part of the Marital Estate?

What Business Assets Are Part of the Marital Estate?

Contact an Experienced New Jersey Family Law Attorney

Ways to Change or End an Alimony Order

The Effect of Remarriage on a Spousal Support Order

Cohabitation as a Basis for Reducing or Terminating Alimony

Contact an Experienced New Jersey Family Law Attorney

What Is It? Why Would You Choose It?

How Does Divorce from Bed and Board Work?

Why Choose a Divorce from Bed and Board?

Contact an Experienced New Jersey Family Law Attorney

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