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New Jersey Family Law- The Basics There are a variety of different Family Law cases. This provides
a general overview of the types of cases we handle. This is strictly
for information only, and should not be construed as legal advice.
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| Divorce affects everyone involved. It affects you, your property, your spouse, and your children. The process of divorce involves the filing of a "Complaint for Divorce" in the Superior Court in the County in which you reside in New Jersey. Divorce is a detailed process which requires us to work closely with you in order to achieve the best possible outcome. | |||
| • Equitable Distribution | |
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| Marital property is divided
in New Jersey by what is known as Equitable Distribution. While people
sometimes take this as 50/50 division of assets, it really means fairly
allocating all marital property and debts. The basic rule is that
everything you mutually acquire from the date of your marriage until
the date of the filing of the Divorce Complaint is subject to Equitable
Distribution. There are many exceptions, but this basically includes
both assets and debts. Divorce litigation essentially comes down to
a form of financial planning. Our role as attorneys representing you in Equitable Distribution is to determine the best possible division of property based upon your needs. We strive to allow our clients to get a fresh start and not be financially devastated by divorce. Every client's case is different as each person has different financial and emotional needs. No two divorces are ever the same. We attempt to get you the best possible distribution based upon your needs. |
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| • Child Custody and Support | ||
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| Child Custody is determined
based on an number of factors including the best interests of the
children. Often this appears to be the most difficult problem in the
beginning and works itself out during the divorce process. Very few
Custody Cases are actually litigated. Most settle through the Court
Ordered Mediation Process, or conferences. There are two (2) forms of custody: "Legal" and "Physical." One common arrangement in New Jersey is for both parents to share "Joint Legal Custody" and one parent having "Primary Physical Custody." Joint Legal Custody refers to both parents having an equal say in the major health, education, and welfare decisions for their child. Primary Physical Custody refers to one parent being the primary custodian for the child, and the other having visitation. There is also "Shared Physical Custody" which refers to almost an equal split of time with each parent. Again, every case is different and the best interests of the child(ren) is the most important consideration. Child Support is usually set in accordance with the New Jersey Child Support Guidelines. We recommend that most clients have child support paid through a wage garnishment, as it insures the Payor will meet his or her obligation and the Payee will receive Child Support. Child Support is dependent upon many factors, including gross incomes, time spent with the child(ren), and expenses. We calculate the Child Support usually prior to or the divorce action. However, Child Support can be filed for anytime, even if the parties are not married |
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| • Alimony | |
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| Alimony is generally based
on a series of statutory factors, including length of marriage, difference
in incomes, and financial need. There is "Term Alimony"
which is usually reserved for shorter term marriages, between five
(5) and under (10) ten years where the factors are met. There is also
"Permanent Alimony" which is reserved for marriages over
ten (10) years where the factors are met. Alimony is generally tax
deductible to the Payor and taxable to the Payee. The length of marriage
and need are different for every case. Again, this comes down to financial
planning. Alimony is often the most hotly contested issue. To answer a common question, Alimony generally terminates upon remarriage or living with another person in a marital like relationship, unless it is Term Alimony not modifiable by agreement. The terms for modification or termination need to be carefully addressed to avoid future problems. |
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| • Causes of Action for Divorce in New Jersey | |||
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| New Jersey
has Fault and No Fault based Divorce. No Fault Based Divorce requires
physical separation and living apart for a period of eighteen (18)
months. Fault Based Divorce has a variety of counts with the most
popular being "Extreme Mental Cruelty." An example of "Extreme
Mental Cruelty" is an act which makes it unreasonable to live
together as husband and wife, and can often involve a broad spectrum
of actions. Most divorces filed are Fault Based Divorces based on
Extreme Mental Cruelty. This, normally, does not affect Equitable
Distribution or division or property. We find it's smarter for most people not to put their lives on hold for eighteen (18) months simply to file a No Fault Divorce. Contested divorce actions can take anywhere from six months to over a year depending on the County in which you reside. Divorce is painful enough and we attempt to expedite it as quickly as possible. Most clients find that they enjoy getting through the process as quickly as possible so they can move on with their lives. The Divorce beings through the filing of a Divorce Complaint. Thereafter, Court Rules require your spouse be served with the Complaint and Summons. Once your spouse has been served, he or she has thirty five (35) days in which to respond to the Complaint. Your spouse will usually hire an attorney and file an "Answer and Counterclaim," which we then must Answer. Once the Complaint and Answer are filed, the next step is a Case Management Conference and Discovery Order. |
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| • Case Management Conference and Discovery | |
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| The Case Management Conference is generally the Court appearance whereby each counsel speaks to the other and determines how much time is needed, and what needs to be done. Often, homes need to be appraised. Businesses, pensions and other major assets need to be valued. This takes time. The Court will usually require both parties to attend Parenting Education Classes and Child Custody Mediation if there is an issue of custody or visitation. This requires both parties to negotiate the custody and visitation schedule. Most of the time the issues will resolve at this point. However, if Custody or Visitation remains an issue, a Custody Evaluation may be ordered. This requires the hiring of Expert(s) depending on our client's needs. A custody expert or experts will make recommendations for the Visitation and Custody issues in your particular case. | |
| • Pendente Lite Orders (Temporary orders) | |
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| Between the times a dissolution action is filed and the time a judgment of dissolution becomes effective, the court may use temporary orders to resolve any issue in the case. These temporary orders are very important because they can address the immediate concerns of the parties, and also they frequently form the basis for the permanent orders which collectively make up the final judgment. It is critical for us to keep you financially afloat during the pendency of the divorce action. Often this requires Child Support and Temporary Spousal support to be set early if needed. These are accomplished through the filing of a Notice of Motion in the Superior Court. | |
| • Matrimonial Early Settlement Panel (MESP) | ||
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| Once all the
discovery is complete, the Court will schedule a non binding arbitration
of your divorce action. It involves us appearing before a panel of
experienced matrimonial lawyers who are assigned by the Court to sit
on cases. The MESP Panel's lawyers who are assigned to review your
case will make recommendations as to settling your action. Often this
allow us to facilitate a settlement of your Divorce action. If settlement
is not possible, the Court will generally set up a further Settlement
Conference to attempt to resolve issues. If any issues remain, then
the Court sets the matter for Trial and experts may need to be called
in. Most cases do not go to trial. Almost 99% of all divorce matters
settle prior to trial. Most often, we are able to resolve all issues
and enter into a Property Settlement which is then made part of the
Final Judgment of Divorce. This is basically an Judgment and Court
Order which requires both parties follow and is the framework for
your new life. You lastly have a choice to resume your maiden name. We strongly suggest you give this some thought so you have a final decision at the time of your Final Divorce. This will allow spouses to resume their maiden name without the need for further legal work. We have a great deal of experience in handling all aspects of matrimonial cases. Our job is to represent YOUR interests to the best of our ability. It is important that we keep you financially afloat during the process, and give you the best chance in your new life. There are no "winners" or "losers" in a divorce action, as it affects you both emotionally and financially. Divorce can be financially devastating unless serious thought and consideration is given to your best interests. We keep you best interest at heart. |
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| • Post Divorce Matters and Domestic Violence | |
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| Half of our family law
practice involves Post Divorce Issues and Motions. Why? Because, unfortunately,
people still have to deal with each other until the children are emancipated
(which is generally when they finish college or get a full time job,)
and problems often arise. These problems include: recalculating child
support or alimony; calculating each parent's contribution for college;
changing the visitation schedule, or enforcing orders requiring payments
or other obligations. Many times a spouse doesn't comply with his obligations, financial or otherwise, and we are required to enforce that Order against the defaulting spouse. The parties may not be married, which involves a totally separate action. These are just a few of the examples of many post divorce issues which arise. The process involves a Notice of Motion being filed on your behalf. Domestic Violence can involve the filing of a Temporary Restraining Order, and a trial by the Court to determine if a Final Restraining Order is necessary. A Final Restraining Order can provide for protection, visitation, and support. There may also be Criminal Charges involved as well. It is a complicated process and often involves a short trial on the matter. We have a great deal of experience handling these matters, and have lectured on the subject. |
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| • Uncontested Divorces | |
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| Many people have short term marriages with little property and no children. We can facilitate a quicker and more inexpensive divorce if the parties are agreeable to all issues. This generally only involves the preparation of the Divorce Complaint and Property Settlement Agreement. If you can agree, then this is certainly the best and most inexpensive way to handle divorce. | |
| • Adoption | |
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| Adoption is a wonderful
aspect of Family Law. It involves the legal formation of a new family.
There are generally two forms of Adoptions we handle. First, a "Step Parent Adoption." This involves, for example, a step father adopting the mother's daughter. It requires the consent of the other parent. Often Step Parent Adoptions are the simpler of the two, but the parties are required to reside with each other and the child to be adopted over two (2) years. A Home Study can often be waived with Step Parent Adoptions. Second, is a "Stranger Adoption." This usually involves the adoption of a child by parents who have no blood relation. It generally involves a home study and is longer and more involved.. Again, the biological parents are required to consent to the adoption. The process can take anywhere from six (6) months to one year depending on the type of adoption. |
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| • Our Family Law Practice | |
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Established in 1996, we have over ten (10) years of full time
Family Law Experience and are members of the Thomas Forkin
Inn of Court (the South Jersey Family Law Association for Attorney).
We regularly appear in Family Courts throughout South Jersey. We keep
you informed of the status of your case. We have a great deal of experience
and know how to properly represent your interests. Everything said here is only a general overview of the process in Family Courts. Every case is different requires individual attention. We pride ourselves in being responsive (returning calls) and keeping you informed. We also attempt to keep the process as amicable as possible while at the same time protecting your interests. |
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Should you have any questions, please contact us for a
free consultation. You can contact us Toll Free at 1-877-580-2200. Evening
appointments are available.
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Underwood & Micklin | |
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