It can be stressful when a married couple decides to divorce. There are major questions that need answering and arrangements that need to be made. Unfortunately, in many instances the spouses are the least impacted by a divorce. There are other family members who are affected by the divorce, specifically the children.
Children can be caught up in the battle between their parents as the two struggle over who will gain custody of them, and which spouse will pay the other alimony or child support. It can be hectic and difficult to manage. When a person is going through a difficult marriage, they need someone who will be on their side and represent their needs and goals in a divorce settlement. They need a lawyer experienced in family law who will work with their ex-spouse’s lawyer to reach a resolution to the situation.
What can a Family Law Lawyer Do for Me?
A family law lawyer will represent a person’s interest throughout a divorce proceeding to ensure that their priorities are addressed and taken into consideration. There are multiple facets of a divorce, and having an experienced lawyer to assist can make what could be a difficult process run more smoothly. A lawyer also has the distinction of not being emotionally invested and can approach the negotiations rationally. They will also provide clear-headed advice and recommendations.
Among the areas that an experienced lawyer can help clients with include the following:
- Child custody
- Child support
- Grandparent visitation rights
- Parenting time
- Prenuptial agreements
Having a lawyer representing a person’s interests will help the process along to ensure that they reach an agreement that all sides can live with.
Alimony or spousal support involves routine payments made from one spouse to another on completion of a divorce settlement or separation agreement. They are not always guaranteed and are based on the need of both parties. In New Jersey, the length of the marriage can play a role in the awarding of alimony. For instance, a marriage that lasted less than 20 years will not see alimony payments last longer than the life of the marriage.
In addition, a person convicted of a major crime such as murder, manslaughter, criminal homicide, or aggravated assault is ineligible to collect alimony. Other factors that determine alimony include the following:
- The need and ability of the parties to pay
- The duration of the marriage
- The earning capacities of each party
- The parental responsibilities for the children
- The tax treatment and consequences to both parties
- Each party’s financial and non-financial contributions to the marriage
Not all alimony agreements are permanent. There are versions established for a short period or will expire when a certain expense is paid off or the circumstances of the recipient changes. The ex-spouses can negotiate an alimony deal as part of their divorce settlement, although if one is ineligible to receive alimony, the agreement could be tossed out by a judge.
Not all couples can stay together. It is a sad and unfortunate fact of life. There are instances in which a couple is better off no longer being together than staying married. When that happens, there are numerous questions and arrangements that need to be made, and learning about the law in New Jersey can help.
New Jersey is a no-fault state, meaning that so long as one of the two members of the marriage has been a resident of the state for at least a year, they can file for a no-fault divorce. That means no one member of the marriage is held liable for its dissolution. However, to qualify for this divorce, the couple must have been separated for more than 18 months.
There are instances in which a spouse feels unsafe to be legally married to a person and cannot wait that long. If they do not wish to wait the required 18 months, they can file for divorce on grounds. Those grounds are as follows:
- Extreme cruelty
- Voluntary addiction to narcotic drugs
- Habitual drunkenness
- Institutionalization for mental illness
- Deviant sexual conduct
- Irreconcilable differences
Those looking to divorce with cause must prove that this circumstance exists for a judge to approve the divorce. Either way, the person seeking the divorce will file a Complaint for Divorce when they wish to end the marriage.
In terms of dividing assets, New Jersey uses the equitable distribution model, meaning that all assets are divided in an equitable fashion. That does not mean that they are divided equally. Certain assets are immune from this arrangement, such as assets that were acquired by one person by the couple prior to the marriage and not co-mingled with other marital assets. An inheritance to one spouse that remains separated from the marital assets is also ineligible even if it was obtained during the marriage.
If the couple agrees to the divorce and an agreement on the division of assets and child custody, the divorce could be finalized within a few weeks of finalizing the paperwork. However, the more typical timeframe is three to four months for an uncontested divorce and significantly longer if the two sides cannot come to an agreement.
One of the most difficult and stressful aspects of a divorce proceeding can be determining who gains custody of the children. By law, if the child is a resident of New Jersey, the courts in this state will have jurisdiction over determining custody agreements. When determining custody, there are two versions:
- Physical custody: This is the actual physical location where the child will spend his or her time.
- Legal custody: This is the parent or parents who will make the make life decisions for the child such as medical, education, religion, and other matters.
When deciding custody, the best interest of the child is always the top priority for a judge. To that end, the preference is to always have the child spend time with both parents. The custody arrangements for children are as follows:
- Joint custody: Under this arrangement, the child will live with one parent or share time between parents, and both parents will work together to make the major life decisions.
- Sole custody: The child lives with one parent who will make the major life decisions on behalf of that child while visiting with the non-custodial parent.
If the parents can decide on an alternative custody arrangement that is in the best interest of the child, a judge will more than likely approve that arrangement as well.
There are multiple factors that a judge will consider when determining the proper child custody arrangement. If the parents wish to have joint custody, the relationship between the two ex-spouses will be greatly scrutinized. A judge wants to see how well they communicate, agree with each other, and cooperate for the betterment of the child.
A judge will not grant custody to a parent who has a history of violence or domestic abuse. That will also factor into a non-custodial parent’s visitation rights as well. Other factors that a judge will consider when determining custody include the following:
- How the child interacts with their parents and siblings
- What the preference is of a 12-year-old or older
- The stability of the home environment
- The fitness of the parents
- The parents’ employment responsibilities
The best way for the spouses to develop a child custody plan that they both favor is if they negotiate with each other directly and create a plan that is in the best interest of the child. Otherwise, the judge may create their own plan, which one or both parents may not like but will have to abide by.
Child support payments are court-mandated payments that the non-custodial parent pays to the custodial parent to help in defraying the costs of raising the child. They are supposed to go for expenses specifically for the child such as education, medical expenses, and other day-to-day needs. It is up to the custodial parent to decide how to best allocate the funds.
Most custody payment arrangements are temporary, halting after the child turns 18. They can extend beyond that point if the child is still attending high school or has certain physical or mental disabilities.
In most instances, the parents can develop a child payment arrangement that is approved by the judge. If the two sides are unwilling to negotiate, the legal custodial parent can seek help from the local Child Support Agency (CSA). The CSA will work with the custodial parent to establish support obligations and manage the collection and the distribution of the funds so that the two parents do not have to have any interaction with each other. The CSA will also enforce any failures of the non-custodial parent to pay their obligations through the Probation Division.
The parent receiving the payments can use them only for specific items for the child and not for personal purposes. Those specific uses include the following:
- Necessities such as food, clothing, and shelter
- Health insurance
- Education expenses including school supplies and transportation
- Child care expenses
- Extraordinary medical expenses
- Visitation travel costs
- Any other expenses considered necessary to support the child’s best interests
When determining the monthly payments, the judge or CSA calculates all the expenses for the child including insurance costs, daycare expenses, and whatever expenses provided by the custodial parent. The judge will then calculate how much the two parents would have contributed had they remained together and base the payments on that expense.
Grandparent Visitation Rights
Grandparents are an important part of any child’s life because they help with development, especially if that child is not living with their immediate family members. In New Jersey, parents may ask a court’s permission for visitation rights to see their grandchildren just as a parent can seek visitation rights.
Any non-immediate family member such as a cousin or a sibling may petition the court. However, in deciding on whether to grant visitation rights, the court will consider the following factors:
- The relationship between the child and the applicant
- The relationship between each of the child’s parents or the person with whom the child is residing and the applicant
- The time that has elapsed since the child last had contact with the applicant
- The effect that such visitation will have on the relationship between the child and the child’s parents or the person with whom the child is residing
- If the parents are divorced or separated, the time-sharing arrangement that exists between the parents regarding the child
- The good faith of the applicant in filing the application
- Any history of physical, emotional, or sexual abuse or neglect by the applicant
- Any other factor relevant to the best interests of the child
If a grandparent is going directly to court to see their grandchild over the objections of the parent, there must be significant animosity between the two. In those instances, mediation might be a positive preliminary step to avoid having to take the matter to court.
When parents get divorced, their children are left in the middle of it. If the two cannot agree on a joint custody plan or if the court awards sole custody to one parent, the other parent, or non-custodial parent, is entitled to visit with the child. They receive pre-determined visitation or parenting time with their child.
The details of each visitation plan will vary, but courts like to allow the non-custodial parent to have as much contact with the child as possible. However, it is best for the parents to arrange a visitation schedule on their own that the court can approve. The factors that determine the specifics of a parenting time plan include the following:
- The willingness of the parents to communicate and cooperate on parenting issues
- A history of reluctance to allow parenting time
- A child’s relationship with their parents and siblings
- A history of domestic violence
- The preference of a child if older than 12
- The stability of the parents’ residences
- The child’s educational needs
- How close the two parents live to each other
- The frequency and quality of the time spent with each parent
- Employment responsibilities of each parent
- Other relevant factors
Non-custodial parents with a history of abuse still do have a right to parenting time with their children, although it will be under different circumstances. These visits will take place at a neutral site, which is free from influence of the custodial parent. The visit will also be supervised by a third-party state employee.
If a parent fails to make their visitation appointment, it is considered a violation of a court order. They will then become subject to monetary fines. If the custodial parent is failing to honor the visitation agreement, they could also face fines and potentially lose custody of the child to the non-custodial parent.
A prenuptial agreement, or premarital agreement in New Jersey, is an agreement that a couple signs before getting married that established how they will divide their assets in the case of divorce. It is a way to protect their individual assets ahead of a marriage.
To be effective, a premarital agreement must be presented in writing and signed by both spouses. It takes effect on commencement of the marriage. There are several provisions that the agreement can include, such as the following:
- The rights and obligations of each spouse when it comes to property
- The right to manage and control property
- The manner that property will be distributed because of divorce, death, or other life event
- The modification or elimination of spousal support
- The details of how the agreement will be enacted after the death of a spouse
- Details of the beneficiaries of a life insurance policy
- The choice of law governing the construction of the agreement
The couple has a wide range of flexibility in what they choose to include in the agreement. However, they cannot include any provisions that will have an adverse impact on either one to provide child support. The only way to revoke or change the agreement is through a written request signed by both spouses.
Mount Laurel Family Law Lawyers at the Law Office of David S. Rochman Help Clients Going through All Aspects of a Divorce
Going through a divorce can be a difficult and anxious time. There could be questions pertaining to your children or your assets. The Mount Laurel family law lawyers at the Law Office of David S. Rochman have the experience to help you through this situation. We will work with your ex-spouse’s lawyer and come to the resolution that is right for you. Call us at 856-751-2345 or contact us online today to schedule a free consultation. Located in Mount Laurel, New Jersey, we serve clients throughout Burlington County and surrounding areas.