Equitable Distribution in New Jersey Divorce Proceedings

How Marital Assets Are Divided by the Court (When You Can’t Agree)

Equitable Distribution in New Jersey Divorce Proceedings In the state of New Jersey, when you file for divorce, one of the more challenging tasks you’ll face is the division of marital property—the debts and assets accumulated during your marriage. If you and your spouse mutually agree on how to allocate things, the court will still review your agreement to ensure that there’s no indication of undue influence, misrepresentation, or coercion. If you cannot agree who will receive specific property and who will be obligated to pay certain debts, the court will make those decisions for you.

New Jersey has long applied the concept of equitable distribution to determine how a marital estate is divided. It’s important to understand, up front, that “equitable” distribution does not necessarily mean “equal” distribution. The court will attempt to create a property settlement that is “fair,” based on a wide array of factors, including:

  • How long you have been married;What income or property each party brought into the marriage;
  • The standard of living to which the parties were accustomed during marriage;
  • The age and physical health of the parties at the time of divorce;
  • The terms of a valid prenuptial or postnuptial agreement signed by both parties;
  • The extent to which either party wasted or dissipated marital assets;
  • The earning capacity of the parties at the time of divorce;
  • The contribution either party made to the training, education, or earning power of the other party; and
  • The need for one party to occupy the marital home, such as a custodial parent of minor children.

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, 9:00 A.M. and 5:00 P.M.

Determining the “Best Interests of the Child”

Factors Used by Courts to Establish Custody and Visitation

Determining the “Best Interests of the Child”In New Jersey, as in all states, courts must consider the “best interests of the child” when making decisions about physical custody and visitation. Courts look at a number of factors when making that assessment, including:

  • The ages of the minor children—Although the presumption is slowly changing, there’s still a strong perception that infants, toddlers, and younger children should be with their mother, particularly when the mother has served as the primary caregiver. Known as the “tender years” doctrine, it’s no longer enforced but still carries influence in many courts.
  • The living situation of each parent—Because of the importance of stability in a minor child’s life, courts look at where each parent lives, how permanent that residence is, and whether it provides for the needs of the child. Often, the result is that the parent who retains the family home is more likely to get physical custody. Conversely, a spouse who’s temporarily living with friends or family is less likely to get custody and may even experience limitations in visitation.
  • The willingness of each parent to cooperate with the other—Judges discourage parents from bringing conflict into the parenting relationship. As a general rule, the more cooperative you are with your ex-spouse, and the less evidence that you’ve spoken negatively about the other parent, or tried to alienate your child’s affection of the other parent, the more likely you’ll get favorable custody or visitation arrangements.
  • The strength of a parent’s bond with the child prior to divorce—If you weren’t very involved before the marriage fell apart, a judge is less likely to require the child to spend time with you, unless you can show a meaningful change of heart.
  • The child’s wishes—Typically, the wishes of the child are considered only if the child is 12 years of age or older.

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, 9:00 A.M. to 5:00 P.M.

The Requirement of Separate Legal Counsel in New Jersey Divorce Proceedings

The Requirement of Separate Legal Counsel in New Jersey Divorce ProceedingsThough many divorce proceedings can be contentious, it’s not uncommon for married parties to terminate their relationship amicably. Because a divorce proceeding can be costly, there may be a desire minimize expenses by hiring a single attorney to handle all the details. In New Jersey, that is not permissible.

Under the ethical rules in New Jersey, it is considered an inherent conflict of interest for an attorney to represent both sides in a divorce proceeding. Even where parties appear to be in agreement, there’s a concern that one party might unduly influence the other or engage in misrepresentation. Furthermore, it’s often the case that what is in the best interests of one party is not in the best interests of the other party. For example, when establishing child support, the custodial parent has a vested interest in receiving more support, whereas the non-custodial parent may seek to minimize payments. An attorney representing both sides simultaneously cannot properly advocate for both parties.

In some cases, though, an attorney may draft a divorce settlement that affects both parties. If the parties go to a mediator or work out an agreement on their own, then one of them may take the terms of that agreement to a single attorney to draft the document. Typically, the attorney will send the draft agreement to the other spouse, advising that they have it reviewed by separate legal counsel. If the other party fails to respond or indicates no objection to the terms of the agreement, the attorney typically notes that fact in the agreement. The agreement is then submitted to the court and becomes the basis for a divorce decree.

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 9:00 A.M. and 5:00 P.M

How Child Support Is Determined in New Jersey

Who Has a Child Support Obligation? | How Is Child Support Calculated?

How Child Support Is Determined in New JerseyIf you’re involved in a New Jersey divorce and there are minor children in the home, or a child is expected, your divorce decree will typically include an order for child support. You and your ex-spouse can, of course, agree on who will pay support and how much will be paid. If you do, you can sign a Consent Support Agreement and avoid involving the court.

However, if you can’t come to an agreed-upon amount of child support, the court will do so for you. The court may consider a number of factors when calculating child support, including:

  • the needs of the child,
  • the financial resources, including income, savings, investments and other assets, of both parents,
  • the standard of living to which the child has become accustomed during the marriage,
  • the potential earning ability of each parent,
  • the income and assets of the minor child,
  • the education requirements for the child,
  • the age and health of all parties, and
  • any other relevant factor.

Under established New Jersey law, after a divorce, both parents have joint responsibility to provide for their children. Courts assume that, when the parents were married, they combined their income to meet the obligations of the entire family. Accordingly, the same principle applies after a divorce—the court bases the support order on the combined net income of both parents.

The court then calculates the amount of support from pre-established worksheets, based on how much time the minor child spends with the non-custodial parent. If the child spends all of his or her time with the custodial parent, support is calculated according to the sole parenting worksheet (Appendix IX-C). If the child spends time with the non-custodial parent, the court may, in its discretion, use the sole parenting worksheet or apply the shared parenting worksheet (Appendix IX-D).

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.

Equitable Distribution in a New Jersey Divorce

What Factors Does the Court Consider?

Equitable Distribution in a New Jersey DivorceFor purposes of allocating the assets and debts accumulated during a marriage, the state of New Jersey follows the legal principle of equitable distribution. Under equitable distribution, if the parties to a divorce cannot agree on the division of property and obligations, the court will attempt to distribute the estate fairly. It’s important to note that “fairly” does not necessarily mean equally.

Criteria Used to Allocate Marital Debts and Assets

New Jersey courts consider a wide range of factors when determining what is fair or equitable, including, but not limited to the following:

  • how long the parties have been married,
  • the standard of living to which both parties were accustomed during the marriage,
  • the age and health (physical and emotional) of both parties,
  • whether there was a valid prenuptial or postnuptial agreement governing distribution of property,
  • the extent to which either party brought income or assets into the marriage,
  • the respective income and earning potential of each party,
  • whether one party delayed education or career advancement for the sake of the marriage or to the benefit of the other party,
  • contributions either party made to the education or earning potential of the other,
  • non-cash contributions of either party to the marriage, including childcare and homemaking, and
  • any other relevant factors.

As a general rule, New Jersey courts don’t allocate fault when dividing marital assets, but there are exceptions:

  • when one party wasted or dissipated marital assets through wrongful conduct, such as an extramarital affair, or
  • where one party engaged in egregious behavior, such as physical violence or abuse.

The relative weight of the various factors is entirely within the discretion of the judge.

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, 9 A.M.–5 P.M.

Contempt of Court in New Jersey Divorce Proceedings

What Constitutes Contempt? What Happens If a Party Is Found in Contempt?

Your divorce is final. You’ve reached agreements with your ex about custody, visitation, and support, and the court has documented your arrangement in a written order. What happens if your spouse chooses not to abide by the terms of the divorce decree? What power do you or the court have to make sure your agreements are honored? The answer involves contempt of court citation.

What Is Contempt of Court?

In the American justice system, parties are bound by law to follow court orders, including divorce decrees, custody orders, and support orders. A person who intentionally violates such an order can be found in contempt of court. In divorce proceedings, contempt of court typically involves a failure to pay child support, refusal to make a child available for visitation, or taking the child out of the state or country in violation of a court order

What Are the Potential Penalties for Contempt of Court?

New Jersey courts have substantial latitude with respect to the penalties for violating a court order. One of the most common sanctions is the requirement that the person found in contempt pay the other party’s legal fees. In most cases, the offender faces fines, though the court has the power to take away the perpetrator’s drivers license and even sentence the offender to jail time.

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 9:00 A.M. and 5:00 P.M.

The Impact of Retirement on an Alimony Order in New Jersey

Can You Seek Reduction in Alimony Payments When You Retire?

The Impact of Retirement on an Alimony Order in New JerseyWhen your divorce decree includes a spousal support obligation, it’s not necessarily set in stone. You can petition the court to reduce the payments if your financial situation changes considerably, though the change typically must be due to factors beyond your control, such as the loss of a job. What happens if you still have an alimony obligation when you reach the age of retirement, particularly if your retirement income is significantly less than your working income? In New Jersey, it depends on the circumstances.

When You Reach Full Retirement Age

Under New Jersey law, upon reaching full retirement age, you can ask the court to consider whether your change in income warrants a termination or reduction of your alimony obligation. Full retirement age is generally deemed to be the age of eligibility for full social security benefits.

Can You Retire Early and Reduce Alimony Payments?

The court will assess a number of factors to determine whether your retirement is reasonable under the circumstances or primarily for the purpose of minimizing your support obligations:

  • The age and health of both parties
  • Whether retirement is voluntary
  • The retiring spouse’s occupation and the physical and mental toll it presents
  • Whether the retirement preceded the date anticipated by one or both parties and why
  • The impact of the retirement on the financial health of both parties

When the paying spouse retires or seeks to retire before full retirement age, the court uses greater scrutiny when assessing whether the retirement is reasonable. Among the factors the court considers are financial incentives from the employer to retire, the physical demands of the job, and any health issues the payor is experiencing. If the court determines that the primary purpose of the early retirement is to lower support payments, the court will likely deny the request.

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 confer with you Monday through Friday, 9:00 A.M. – 5:00 P.M.

Annulments in New Jersey—An Overview

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

Divorce from Bed and Board in New JerseyIf 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.

Dividing Business Assets in a New Jersey Divorce

Are Business Assets Part of the Marital Estate?

Divorce from Bed and Board in New JerseyIn 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

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.

Termination or Modification of Alimony in New Jersey

Ways to Change or End an Alimony Order

Divorce from Bed and Board in New JerseyAlimony 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

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.