Navigating. Your Divorce

Transcription

1 Navigating Your Divorce

2 Introduction According to a U.S. Census report in 2011, New Jersey had one of the lowest divorce rates in the country. You may read that statistic and wonder why your marriage is having a different outcome. Don t dwell on what went wrong with your marriage. It s time to arm yourself with as much information about navigating your way through your divorce. In this e-book, you can expect to learn about a wide range of topics regarding divorce in New Jersey, from how property is divided to what to expect. 2

3 1. Navigating Through Divorce: Your Options When deciding to end your marriage, there are two options to consider, divorce and annulment. Annulment vs. Divorce An annulment means you were never married to your spouse. It s the state s way of saying the engagement, ceremony and reception never occurred. Some New Jersey residents prefer to obtain an annulment because of religious reasons or the stigma associated with being divorced. There are two types of annulments in New Jersey: civil and religious. You may choose an annulment over a divorce if you haven t been married long or you and your spouse have accumulated little to no assets or debts. Civil Annulment Grounds There are seven grounds, or reasons, you can use to obtain an annulment. Duress You married your spouse because he or she threatened you with physical violence. Bigamy Bigamy occurs when your spouse has another spouse living at the time you got married. Underage If you are under 18 years old, you have no legal right to agree to the marriage. You must have your parents consent. Incapacity You didn t have the mental capacity to understand that you were getting married. This could be due to a mental defect or you were intoxicated and went to a local chapel to get married. 3

4 1. Navigating Through Divorce: Your Options (cont.) Impotence Your spouse did not know or withheld the fact that he or she couldn t consummate the marriage. For instance, he or she may be unable to engage in sexual relations or may not want to do so. It could also mean that your spouse withheld that he or she could not conceive a child. Fraud Your spouse misrepresented some fact that caused you to get married. For instance, your spouse married you because you were a U.S. citizen and he or she was trying to become a citizen, or lied about being: Addicted to drugs or alcohol. Being pregnant by another man. Incest You are married to a blood relative of the first degree. Religious Annulment Legal Separation Choosing to permanently end your marriage is extremely difficult. You may not be ready to do so. Your spouse may want more time to work through personal or marriage issues. Instead of getting a divorce, you may want a legal separation. A legal separation allows you and your spouse to live separately, but remain married. New Jersey law doesn t recognize legal separations. Therefore, you don t need to file specific documents with the court. Instead, you can hire an attorney to help formalize an agreement to take care of things, such as: Child custody. Child support. Visitation. Possible alimony. Asset distribution. A legal separation may give you and your spouse the break needed to reconnect. It may also give you the time needed to work toward a divorce. A religious annulment is usually obtained after you receive a civil annulment. However, it takes place within the Catholic Church or other religious canon law forum. 4

5 1. Navigating Through Divorce: Your Options (cont.) Grounds for Divorce in New Jersey New Jersey is considered a mixed state when it comes to grounds for divorce. This means you can choose between "no-fault" or "fault" when listing the grounds for a divorce. If you and your spouse have been separated for more than 18 months, that can also be the basis for a divorce. A no-fault divorce occurs when you and your spouse mutually agree to end your marriage and don t want to assign fault to either party. Instead, you work to resolve issues surrounding your divorce, such as child custody, alimony and division of assets. Fault grounds is a legal term which means that you or your spouse is the reason your marriage is over. Listing a reason for your divorce may give you an advantage in a contested issue such as child custody or marital property. However, you ll want to speak to your divorce attorney about any advantage citing the following grounds may give you. The following is a list of New Jersey grounds for divorce: Desertion. Adultery. Extreme cruelty. Separation. Imprisonment. Deviant sexual conduct. Habitual drunkenness. Addiction to drugs. Irreconcilable differences. Institutionalization for a mental condition. 5

6 1. Navigating Through Divorce: Your Options (cont.) Most Common Grounds Irreconcilable Differences for a Divorce New Jersey joined other states which allowed irreconcilable differences to be used as a In New Jersey, there are some common grounds for divorce in This is the mostused grounds for divorce in the state. It means grounds people choose for ending their marriage. They are listed below. that for more than six months there has been a breakdown in your marriage. The reason for Extreme Cruelty the breakdown varies from couple to couple. For instance, there could be a communication Litigants, or people seeking divorce, use breakdown between you and your spouse. You extreme cruelty as a basis for various reasons. live together in the same house, but are leading To use extreme cruelty, you must have been separate lives. subjected to some form a cruelty by your spouse. When listed on a divorce complaint, Multiple Grounds the cruelty can be as detailed as you want it to be; however, you must have undergone cruelty Your marriage may have a lot of problems. that would make it unreasonable to stay Your spouse may have cheated on you, and married to your spouse. This could be physical, you ve been separated for years. Some emotional or sexual abuse. litigants list more than one reason for the end of their marriage. Your divorce attorney may Separation list more than one reason for the divorce. However, listing more than one ground doesn t Separation is only allowed to be used when give any extra weight to getting a divorce. you ve been separated for at least 18 months. This means that you and your spouse have lived in separate households for that period of time. 6

7 2. The Divorce Process The first step in the divorce process is hiring a divorce attorney. You may want to talk to family, friends and co-workers to obtain some attorney referrals. You want to conduct some research on each lawyer before contacting them for an initial consultation. Once you ve chosen your attorney, your divorce proceedings happen like this: 1. Your attorney files your Complaint for Divorce. Also, included is an affidavit of insurance coverage and Confidential Litigant Information Sheet. 2. Once your complaint is filed, it receives a docket number. Your spouse is served with divorce papers. The court may decide to schedule a case management conference. During this conference: All parties meet. You identify all the issues regarding your divorce. Deadlines are assigned to exchange documents. You figure out if any expert witnesses such as an economist or psychiatrist, are needed. 7

8 2. The Divorce Process (cont.) 3. The discovery process begins. Discovery is the process where each party in the divorce exchanges necessary information. For example, if your spouse handled the assets, he or she would provide your lawyer with all documents related to the marital assets. Besides exchanging documents, you and your spouse may need to complete certain discovery requirements such as interrogatories and depositions. Interrogatories are a set of written questions your spouse s lawyer wants you to answer. Your divorce attorney may want your spouse to complete interrogatories as well. You can t refuse. You must answer the questions truthfully and under oath. A deposition is oral testimony you give under oath. Your spouse s lawyer asks you questions, and you answer them under oath. Typically, depositions are taped and transcribed. At this time, attorneys start negotiations to end your marriage without going to trial. 1. If negotiations have a positive outcome before your court date, your divorce may not reach trial. However, if issues aren t resolved you will attend an early settlement panel with your attorney and opposing counsel. The panel, usually consisting of two lawyers familiar with divorce law, makes recommendations about your unresolved issues such as custody. If you and your spouse accept those recommendations, a judge grants your divorce that day. 2. If custody is an issue, the court will order you and your spouse to attend custody mediation. 3. You may have to attend an economic mediation if you don t resolve the financial issues. This is a settlement conference where all parties discuss the unresolved financial issues with a mediator. 4. If your divorce isn t resolved in that settlement conference, you must attend an intensive settlement conference. 5. If you and your spouse still can t work out your issues, a judge will do so at trial. You, your spouse and all witnesses will testify. After the trial ends a judge makes his or her decision. If you or your spouse don't appeal, the divorce is finalized. 8

9 3. Dividing Marital Property (Equitable Distribution) Only the assets purchased or obtained during your marriage are considered part of your marital estate. New Jersey law describes the term during your marriage as from the day your marriage ceremony happened to the day your divorce complaint was filed. If you and your spouse have drafed a separagon agreement, then your marriage ended the day the separagon agreement was drafed and not when the complaint was filed. Common Assets Considered The following are examples considered to be marital assets when purchased or acquired during your marriage: Marital home. Money. Vehicles. Investment real estate. Vacation property. Bonds. Stocks. Retirement plans (pension, 401k and individual retirement accounts). Insurance. Businesses owned by you and your spouse. Fixtures and furniture you and your spouse own. Any property you had prior to your marriage isn t part of your marital estate. Other types of separate property include: Inherited property (money, real estate or other types of property). Gifts given to you by a third party. Note: If a separate asset increases in value, the increase may be marital property. However, the asset is still separate property. For example, you purchased rental property prior to getting married. Your spouse made improvements which increased the value of the property. Your spouse may receive a portion of the increased value, but you keep the property. Marital liabilities or debts also are included in property division. These debts include: The remaining mortgage or home equity loan balance on your home. Loans given to you by friends or relatives. All unpaid bills such as credit cards, department store cards and medical bills. Car loans. School loans (acquired during the marriage). Dividing property can happen in various ways, such as: During negotiations between you and your spouse. Direct negotiations between divorce attorneys involved. During arbitration. During mediation. By a judge at trial. 9

10 3. Dividing Marital Property (cont.) Navigating Your Divorce How a Judge Decides Property Division When you and your spouse can t agree on how to divide your marital estate, a judge will decide using the legal concept known as equitable distribution. The term equitable is misleading. New Jersey law views equitable as what is fair to you and your spouse. So a judge is not concerned with dividing property equally. A judge distributes property according to the New Jersey Statute 2A: which has 16 factors to determine the percentage of property given to each spouse. These factors include: 1. Length of your marriage. 2. Age (of you and your spouse). 3. Emotional and physical health (of you and your spouse). 4. Property purchased during your marriage. 5. Income gained during your marriage. 6. Standard of living that was established during your marriage. 7. You and your spouse s current financial situation. 8. Income capacity (of you and your spouse). 9. Any written agreements made between you and your spouse before or during your marriage about dividing your property. This includes pre- and post-nuptial agreements. 10. The type of employment skills, training and work experience you and your spouse have. 11. The educational background of you and your spouse. 12. Contribution each of you made to either the education or earning power of each other s careers. 13. Any custodial responsibilities to your children. 14. How many years either of you has been without a job. 15. The time it may take to acquire needed training or education to help you or your spouse earn a comparable standard of living. 16. Any tax consequences. Based on these factors, a judge can divide property and debts from zero to 100 percent. For instance, a judge may give you 60 percent of the property and your spouse 40 percent. You ll need to talk with your divorce lawyer to determine how a judge may divide your property and liabilities. 10

11 4. Alimony: What You May Receive or Pay Your Spouse Alimony is called many things depending on who is paying or receiving it. It may be referred to as spousal support or spousal maintenance. Alimony is the amount of money a spouse pays to his or her ex-spouse either during or after a divorce. There are two purposes to proving support to a spouse. One reason is to allow both you and your spouse to maintain a similar lifestyle as you had during your marriage. Another reason is to balance out the economic consequences of ending your marriage. It is supposed to prevent each spouse from having to endure financial hardship. In New Jersey, there are several types of alimony available depending on the specific circumstances of your divorce. The following is a brief overview of various types of alimony: Pendente Lite (Temporary) Alimony This support is awarded early on in your divorce proceedings to help each spouse maintain the finances they had during your marriage. In other words, you remain at your financial status quo. For instance, you were unemployed at the time your spouse filed for divorce. You would not be able to maintain a household because he or she was the one paying the bills. Temporary alimony would give you enough money to maintain the bills your spouse did during your marriage. Temporary support stops when you divorce is final. Permanent Alimony You re probably the most familiar with this type of alimony. It is usually given to the spouse who did not work during the marriage or doesn t have the ability to become self-supported. For instance, you and your spouse agreed that you would stay at home and raise the children while he or she worked. Now you re divorcing 20 years later. You may not be able to maintain the lifestyle you had while you were married. Permanent alimony helps you enjoy the financial lifestyle you did while you were married. It ends when your spouse dies, or you remarry. 11

12 4. Alimony: What You May Receive or Pay Your Spouse (cont.) Reimbursement Alimony This type of alimony allows you to be reimbursed for helping your spouse s career. Maybe your spouse decided to become a lawyer while you were married. You both agreed that you would work while he or she pursued school full time. The court may award you reimbursement alimony to cover costs such as tuition that were related to your spouse s career advancement. Rehabilitative Alimony Instead of permanent alimony, a judge may order rehabilitative alimony. This type of alimony allows you or your spouse to receive the training or education needed to return to the workforce. It is another type of short-term alimony. Limited Duration Alimony If your marriage didn t last long enough for you to receive permanent alimony, you may be eligible for limited duration support. Unlike permanent alimony, it is awarded for a specific amount of time. 12

13 4. Alimony: What You May Receive or Pay Your Spouse (cont.) The Factors That Determine Alimony There are various factors used to determine whether you pay or receive alimony and what type. The factors that have the greatest influence on alimony decisions are: How long you were married. Your marital standard of living. Financial and other contributions each spouse made to the marriage. Health and age of each spouse. Income of each spouse (this may include income from property division). Each spouse s ability to earn based on things such as job history, education, parenting responsibilities, etc. If you or your spouse needs financial support to reasonably maintain the lifestyle you had during the marriage. If the spouse paying alimony could still reasonably maintain a comparable lifestyle. The effect payments would have on taxes (spousal support is taxable income for the recipient and tax deductible for the payer). To fully understand if you will receive any type of alimony, you should talk to a divorce lawyer. 13

14 4. Alimony: What You May Receive or Pay Your Spouse (cont.) Modifying Alimony In most cases, the alimony amount is fixed but it can be modified. For instance, you may not receive the same amount you did immediately after your divorce because of life s circumstances. Your lawyer may petition for an increase on your behalf. Your spouse may request a decrease. Situations where you may request an increase include: You lose your job. You become disabled. You retire. Your cost of living increases. You must be prepared for a decrease in the alimony you receive based on your ex-spouse s circumstances. Reasons that could lead to a decrease in monthly payments received could be if your ex-spouse: Loses his or her job. Becomes disabled. Retires. Cost of living increases. Anyone requesting a modification must file a post-judgment application along with supporting evidence. This type of evidence consists of things such as pay stubs and bank statements that warrant an increase or decrease in alimony. 14

15 5. Hiring the Right Divorce Attorney When your marriage ends, you need the right attorney to help you resolve all your issues from alimony to child support. To find the right attorney, you need to ask for recommendations from people you trust, as well as conduct your own research online. Look at each divorce attorney s website. You want to read about their education background and experience. Also, you want to see if they have helpful content about getting divorced. Once you meet with the attorneys, you want to base your decision on these factors: Attorney experience. Client testimonials. Ability to connect with the attorney. Comfort level with the attorney. 15

16 6. Ways to Resolve Tough Issues Negotiating things such as the division of property and child support can be easy or hard depending on how well you communicate with your spouse. Luckily, there are various methods to use to achieve an end to your marriage. Separation Agreement This agreement is worked out prior to filing your divorce. You, your spouse and attorneys make the major decisions before it's drafted. The advantage is that everything is settled prior to the divorce process. Four-Way Meeting A four-way meeting takes place at one of the attorney's offices. You and your attorney meet with your spouse and his or her attorney in an informal setting. There is no judge or mediator present. The goal of this conference is to negotiate and resolve issues. Sometimes the conference can become frustrating because you reach an impasse. Typically, breaks are taken to help keep dialogue going. The major advantage is that it costs less than going to trial. Mediation During the mediation, a third party helps you work through each issue. This method is best for couples who communicate well and are willing to compromise. The mediator doesn t make any rulings, rather his or her task is to facilitate communication and hopefully resolution of some or all of the contested issues. 16

17 THE TOP 10 QUESTIONS YOU SHOULD ASK YOUR CAR ACCIDENT LAWYER Navigating Your Way Through Your Divorce Getting a divorce isn t easy. There are so many things you never thought you would have to deal with. Fontanella, Benevento, Galluccio & Smith will help you navigate through your divorce. We are here to assist you through every step of your divorce because we are your legal advocate and supporter through this tough time. Our divorce attorneys know how to negotiate an out-of-court divorce settlement or represent you at trial if needed. We always listen to what you want on issues ranging from custody to alimony. Most importantly, we will fight to get your divorce resolved quickly so you can move on with your life. Remember, we are here for you. Still have questions? We have answers. Speak to One of Our Lawyers Today (973)