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12 Common Misconceptions Regarding New Jersey Divorce Law

The Micklin Law Group-12 Common Misconceptions Regarding New Jersey Divorce Law

During the nearly-quarter century I have been a divorce lawyer for men and fathers in New Jersey, I’ve had clients ask me questions or make statements based on faulty or incomplete information that they found online, or because of something a friend told them. Sadly, there are a ton of misconceptions floating around about how divorce laws in New Jersey work: What the law allows, doesn’t allow, and requires of someone seeking a divorce or wanting custody. The list is endless.

Practicing divorce law in New Jersey for more than 20 years, I’ve heard countless divorce misconceptions. The difficulty arises when trying to filter the wealth of information available – some incorrect and some not binding in New Jersey. Additionally, many clients ask others for advice. Most do not realize that divorces are never the same. Divorces are not complicated; people are. Some men get into sticky situations when they make decisions about their divorce without thoroughly understanding their legal implications. Certain decisions can’t be taken back, which is why it’s best to speak to a divorce lawyer for men before making those decisions, even if you feel you have a clear understanding of the law.

With that being said, I want to address some popular misconceptions.

1. I need to wait 18-month separation before a divorce.  

There are many valid reasons for filing for divorce in New Jersey. They include 18-month separation, extreme mental physical cruelty, sexually deviant behavior, substance addiction, irreconcilable differences, adultery, abandonment, desertion, institutionalism, and imprisonment. Each of these reasons has its own criteria that must be met. Obviously, 18-month separation requires physical separation for at least 18 months. People who are separated long before filing elect this provision. However, this is not a requirement for any of the other reasons for divorce.

While it is not necessary for divorce, an 18-month separation was the closest option to a “no fault” divorce for many years. All other provisions required proof of a “bad act.” So, 18-month separation was easier to prove, assuming physical separation for that period. Historically, 18-month separation was the easiest to prove prior to the adoption of irreconcilable differences.

However, New Jersey recently recognized irreconcilable differences. This reason for filing requires a six-month “waiting period” but no physical separation. One must only be able to say, “Irreconcilable differences exist that cause the breakdown of marriage for at least 6 months” – a statement that could apply to many marriages.

2. If I leave my house, the courts see that as abandoning it.

This is not true. You do not abandon an asset simply by moving out. You may have walked away from the marital home, but you have not walked away from your financial interest in the asset. It is true that abandonment of the marriage can be grounds for a divorce, but this has no effect on any of the assets in which you have a financial interest. Feel free to do whatever makes you most comfortable during this difficult time, even if that means moving out of the home you share. 

3. Prenuptial agreements are for the wealthy.

It’s certainly true that these agreements help those that have acquired significant assets before marriage. However, prenuptial agreements can also help couples with fewer assets who are about to get married. Many believe that a prenuptial agreement is a healthy, positive thing for a couple. Exchanging financial information and outlining resolutions early is healthy. Without one, you face these difficult issues when the relationship is strained and finances are difficult. Since arguing about finances is one of the most common reasons for the breakdown of a marriage, getting everything out in the open before you even get married can only help with those difficult discussions. 

4. I cannot get alimony because I was married for less than 10 years.

There is no steadfast rule for when alimony can be granted. There are no set number of years that qualifies a person for alimony. It is a combination of many factors. Alimony assists a spouse who lost the opportunity to advance his or her career during the marriage. It helps that spouse in maintaining a comparable lifestyle to that of the marriage. A court can consider a spouse’s respective ability to pay, the duration of the marriage, the age and health of the parties, the marital standard of living, earning capabilities and employability, and equitable distribution of marital property when determining alimony.

5. I will only get permanent alimony after 10 years of marriage.

As stated above, no set time exists for alimony. However, the longer the marriage, the more likely a person will receive permanent alimony. Alimony laws in New Jersey were updated in 2014 with the passing of the Alimony Reform Act of 2014. Stricter laws for alimony are in place, and “durational” alimony exists. Alimony can only be granted for the number of years a couple was married if the marriage lasted for less than 20 years (unless under exceptional circumstances).A long-term marriage of 20 years or more may warrant permanent alimony. However, courts must still consider the factors above. Buy Modafinil online https://ochoaspharmacy.com/modafinil

6. Legal separation is a first step to divorce

New Jersey does not recognize “legal separation,” so it is not a requirement before getting divorced. We do have something called a “divorce from bed and board,” also referred to as a “limited divorce.” This divorce resolves financial issues without severing the legal marital contract. In essence, the parties remain technically married and cannot remarry, but resolve their financial aspects. Either may, within a period of time, this “limited divorce” is converted to a full divorce.

This divorce is commonly utilized by either very religious people who cannot, or are unwilling to, seek a full divorce, or people who need to continue medical insurance who may be unable to obtain it once they are divorced.

Additionally, there is the option of a postnuptial agreement. A postnuptial agreement is similar to a prenuptial agreement, but, as the name suggests, is entered by the parties after marriage. This serves to resolve the financial issues between parties while leaving the parties married, and you do not have to file anything with any court.

7. A custodial parent cannot leave the state of New Jersey with the children without the other parent’s permission.

This is inaccurate for two reasons: first, any parent can leave the state with their child if “custody is not an issue.” Typically, this means if there is not and has not been any litigation involving the children with regard to custody, parenting time, or child support. So, if neither parent ever brought the other parent to court about the child or children, either is free to come and go whether in-state or out of the state. With New Jersey being in close proximity to so many other states, even a weekend trip can take a child several states away from home.

If there has been past litigation regarding custody or child support, one can seek the court’s permission if he/she cannot acquire the other parent’s permission. What needs to be proven depends on the situation, but absent any issues in the past of parental alienation or interference, the custodial parent only needs to show the itinerary for the trip and the return day.

8. Common law marriages are the same as a regular marriage

Many people believe that they have a common law marriage if they have been together, living as husband and wife, for several years. The common belief I have heard from many is either seven or ten years. Either way, it is incorrect. New Jersey does not recognize common law marriage.

In New Jersey, there is no such thing as a common law marriage where a couple live together but never get a license or are married by a judge or religious figure. Regardless of how long or short you’ve been living with your spouse or partner, in the eyes of the law you were not married.

An interesting issue that, to my knowledge, has not been addressed is whether or not New Jersey will permit a divorce to a New Jersey resident that moved here from a state that recognizes a common law marriage.

The United States Constitution mandates that each state must give “full faith and credit” to all “public acts, records, and judicial proceedings of every other state.” Citations omitted. So, if there is an enforceable common law marriage in another state, New Jersey may have to permit that couple a divorce. Vidalista https://tyackdentalgroup.com/vidalista

Common law was abolished in New Jersey in 1939.

9. A spouse cannot receive alimony if he/she commits adultery during the marriage.

That is, largely, incorrect. New Jersey’s alimony statute, NJSA 2A:34-23(b) sets forth 14 different criteria for a judge to consider when awarding alimony. They include:

  1. The actual need and ability of the parties to pay;
  2. The duration of the marriage or civil union;
  3. The age, physical and emotional health of the parties;
  4. The standard of living established in the marriage or civil union and the likelihood that each party can maintain a reasonably comparable standard of living, with neither party having a greater entitlement to that standard of living than the other;
  5. The earning capacities, educational levels, vocational skills, and employability of the parties;
  6. The length of absence from the job market of the party seeking maintenance;
  7. The parental responsibilities for the children;
  8. The time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, the availability of the training and employment, and the opportunity for future acquisitions of capital assets and income;
  9. The history of the financial or non-financial contributions to the marriage or civil union by each party, including contributions to the care and education of the children and interruption of personal careers or educational opportunities;
  10. The equitable distribution of property ordered and any payouts on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair;
  11. The income available to either party through investment of any assets held by that party;
  12. The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a non-taxable payment;
  13. The nature, amount, and length of pendente lite support paid, if any; and
  14. Any other factors which the court may deem relevant.

Number 14 is the problem. I believe that I have read an old reported case in which the judge factored a spouse’s adultery into the alimony equation, but I can’t be certain and I have been unable to relocate it.

As a hard and fast rule, the statute does not list adultery in the criteria to consider. Basic statutory construction states that, if the legislature intended it to be a factor, they would have included it. Moreover, I have never seen a judge even consider it.

I believe, in all fairness to our readers, it is POSSIBLE that alimony could be a factor included within the catch all of factor number 13. It is in my opinion, however, that the family court, being a court of equity or fairness, would never increase one’s alimony award BECAUSE of that same spouse’s adultery.

10. My wife cheated on me, so I won’t have to pay alimony

New Jersey law details 14 different criteria for a judge to consider when ruling on spousal support (listed above). None of them specifies adultery, although there is one provision which says a judge may consider any other factor. Our view is that because family courts are charged with ensuring fairness, it would be highly unlikely to consider adultery as a determining factor in setting a support award. What happens within a couple’s relationship is personal and often does not have an impact on their assets. 

11. My ex can’t move out of state with our kids

Issues relating to a permanent relocation do need the court’s approval, but it is possible to move out of state with the kids after a divorce. What needs to be proven depends on the type of shared custody.  In the typical alternating, overnight weekend parenting time schedule, the custodial parent only needs to prove that the move is in the child’s best interest, there’s a good-faith reason for the move, and it will not harm the child or the child’s relationship with the noncustodial parent. In the case of a true shared physical custodial arrangement, the parent that seeks to relocate needs to establish that it is in the child’s best interest.

12. A father never gets custody of the children

Traditionally, that has been the case, but there are a growing number of divorce cases in New Jersey where fathers have been awarded full or shared custody. A judge will want to know why a father would be a better custodial parent than will the mother but we have argued successfully on behalf of many fathers who wanted to be the custodial parent.

The Micklin Law Group, LLC is a New Jersey divorce law firm focusing on family law for men and fathers. Attorney Brad Micklin was recently named to The National Advocates list of Top 100 attorneys from each state. Brad has experience working with high asset divorce. You can read more on this topic by visiting our divorce blog. To set up a consultation, call 973-562-0100.

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