FAMILY LAW

DIVORCE 

To file for divorce in New Jersey, you first have to meet the residency requirements. For all grounds for divorce, except for adultery, you or your spouse has to have lived in New Jersey for at least the last 12 consecutive months. It does not matter if you have lived in New Jersey your whole life. If you and the other party have resided outside of New Jersey at any point in the last 12 months, you will not be able to file for divorce until one or both of you has been here for the last 12 months.

 

If you do meet the residency requirements, you have to decide the appropriate venue for the divorce. Venue refers to where the case should be filed. In New Jersey, venue for the divorce is where the plaintiff lives, where the defendant lives or where the grounds for divorce (also known as the cause of action) first arose. For example, if you are filing for separation, you can file in the county where the separation first began, assuming you do not live there now. I always advise clients to file where they live or in whatever county previous cases between plaintiff and defendant (like custody or child support) have been filed.

 

What are the New Jersey Grounds for Divorce?


Once you decide the venue, you have to decide what on what grounds you should file. New Jersey has 9 different grounds for divorce. They are as follows: 1. Adultery 2. Desertion 3. Extreme cruelty 4. Separation 5. Voluntary substance abuse 6. Institutionalization in mental health facility 7. Incarceration of the defendant 8. Deviant sexual conduct 9. Irreconcilable differences




What is the Most Common Ground for Divorce?


The most common ground for filing divorce are irreconcilable differences, extreme cruelty, separation and desertion. Separation and irreconcilable differences are “no-fault” divorce grounds. All others are fault based. It is important to note that in NJ, with some limited exceptions, the ground for divorce does not affect the court’s decisions as to alimony, equitable distribution or child support. It may have some bearing on custody and visitation, especially in cases of extreme cruelty, voluntary substance abuse and deviant sexual conduct.




What Should I Request the Court to Grant in the Divorce?


Once you decide why you want to file for divorce, you have to consider what you want the court to grant you in the divorce. You can request a name change, custody, child support, visitation, child support, alimony and/or equitable distribution of debts and assets in the divorce. If there is a substantial amount of debt or assets or contested custody/visitation, it would be best for you to retain the services of an attorney as these issues may prove to be too complicated to handle alone.





DIVORCE F.A.Q. 

 

CHILD SUPPORT

In New Jersey, the person with residential custody of a child can receive child support. If the residential custodian is someone other than a parent, then a child support case can be opened against both parents. If the custodial parent is receiving cash assistance from the Board of Social Services (BOSS), then their right to child support is assigned to BOSS and BOSS will open and enforce the child support. If the child(ren) are in the care of DYFS, then both parents will be liable for paying child support to DYFS for whatever amount of time the child is under their care and supervision.

Regardless of where the children reside, child support will be enforced where the paying parent lives. It is often best therefore to open the child support case where the payer lives. If the payer lives out of state, the party requesting the support may be able to work with their local child support office to open an interstate child custody case.

How is NJ Child Support Calculated?


In New Jersey, child support is calculated using a shared income model. That means that both parents’ incomes are factored into the child support calculation. To determine how much child support should be paid, the court looks at the gross income of both parties, the number and ages of the children, the cost of any expenses already paid exclusively for the children (their share of health insurance, tuition, work-related day care, etc.) as well as the number of overnight visitations that the non-custodial parent (the parent the child does not live with) has. If the court believes that one or more of the parents is earning less than they could or should, then the court can impute income to that person or persons. The imputed income will be based on a party’s educational background, earnings history, employment history and years of experience. Once the court has made a child support determination, it can only be changed by either a successful appeal or motion for reconsideration or a showing of a substantial change in financial circumstances since the court last decided the order.




Does Unemployement Impact the Support Payments Schedule?


In New Jersey, unemployment in and of itself will not be enough to warrant a change in child support. The person requesting the change has to prove that the change is permanent and involuntary. Incarceration will also not be a reason for modifying a child support order. Even if the paying parent is in jail, support arrears can still accrue unless and until that incarcerated individual files a request for suspension of support.




Until What Age Are Children in NJ Eligible to Receive Payments?


In New Jersey, child support can continue up until a child has reached age 23 so long as the child is still a full-time student. Child support does not automatically end at age 18 or 19. That being said, child may be emancipated at age 18 if he or she does not go onto to college, is not a full-time student (defined as carrying a caseload of 12 or more credits), is married or is enlisted in the military. Having a child is not in and of itself a ground for emancipation. A child can also be emancipated if the child has reached the age of 18 and is living independently of the custodial parent. To be living independently, the child must live outside of the custodial parents home with no support being provided to the child by their parent. Living on campus while a college student will generally not be enough to prove a child is self-sufficient.





CHILD SUPPORT F.A.Q. 

CUSTODY FILING

In order to file for custody in New Jersey, the children must have resided in New Jersey for at least the last 6 consecutive months. There also cannot already be a custody or visitation order established in another state or jurisdiction. If there is already an order for custody or visitation from another state or jurisdiction, any requests for modification of that order have to be filed in that state or jurisdiction. 

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What Type of Custody Can I Request?


Once your children have met the 6 month residency requirement, you can file for custody. The venue (where the case should be filed) for the filing is where the children have lived for the last 6 months. Once you have selected your venue, you have to decide what type of custody you are seeking. There are two types of custody-legal and residential. Legal custody refers to decision-making. More specifically, decisions regarding the health, welfare and education of the child (ren). Residential custody refers to where the children will be living.




What Does Visitation Look Like for Residential & Non-Residental Parents


Typically, there is one residential parent but both parents share legal custody. There may be situations where joint residential and joint legal or sole residential and sole legal may be more appropriate. If one parent is the residential parent, the other parent will be entitled to visitation. If the non-custodial parent (the parent the child does not live with) has a history of substance abuse, child abuse/neglect, mental health issues and/or violence, his or her visitation may be limited and/or supervised or there may be no visitation at all. Assuming that no such issues exist, the typical visitation (now known as parenting time) schedule is every other weekend, plus one night during the week with alternating holidays.




Can I Request A Modification to the Visitation Arrangement?


Regardless of the parenting time schedule that is set or the custodial arrangement ordered, the court can always modify same in the future. To do so, the party requesting the change has to prove that there has been a substantial change in either the custodian or child’s circumstances (for changes in custody) or in the non-custodial parent’s circumstances (for changes in visitation) such that the current arrangement is no longer in the child’s best interests. Because of the possibility of future changes, custody and visitation arrangements are never permanent.





FILING FOR CUSTODY F.A.Q.