The internet and social media offer all of us access to a wealth of information. Unfortunately, a lot of the information about divorce that is found online is wrong, inaccurate or out of date, especially for men and fathers in New Jersey who are thinking about leaving their wife. Don’t fall prey to divorce misconceptions.
Over the 20-plus years I have been practicing family and divorce law, I have heard nearly every possible misconception about ending a marriage that you can imagine. While some of these notions are thoughtful even if wrong, others are totally outlandish and I don’t know where or how they might have originated.
So, as a kind-of “public service” to New Jersey men and dads, here are eight of the most-common misconceptions about divorce in New Jersey.
1 – Step One in a divorce is legal separation.
Even though New Jersey law doesn’t recognize a legal separation, this often is the first question I get asked by a man or father. There is something called a “divorce from bed and board” which resolves the financial settlement and spousal or child suppose issues are resolved but the couple remain legally married. Within a defined period of time, this “limited divorce” can be converted to a full divorce.
2 – If I move out of our home, I have abandoned it.
Absolutely not true. You might have walked away from your marital home but you have not walked away from your financial interest in the residence. Separating from your wife does not end your interest in either the assets you acquired or the financial liabilities you took on.
3 – Pre-nuptial agreements don’t hold up in a divorce.
I don’t know where this one got started. As long as both people getting married were not under duress when they wrote and signed a pre-nup, it is legally binding. The only other reason a judge might toss out a pre-nuptial contract is if it can be proved one of the people is shown to have lied about their assets or liabilities prior to the wedding.
4 — We were married less than 10 years so I won’t have to pay alimony.
There is no hard-and-fast rule about when or under what circumstances spousal support must be paid. A number of factors are weighed by a judge. A key consideration is your ability to pay support, and for how long it should be paid. A court also considers the age and health of you and your wife, the standard of living you enjoyed while married, and the equitable distribution of marital assets.
5 – My wife had an affair so I won’t have to pay alimony.
New Jersey law lists 14 reasons that are considered when alimony is awarded or denies but adultery isn’t on the list. Judges have ruled that if the legislature wanted it to be considered as a factor, it would have included it in the law. While it is possible a judge may listen to an argument that a wife was an adulterer and so not entitled to alimony, family court seeks equity in approving a divorce so it is unlikely that adultery would be taken into account.
6 – If I have custody of my children, I cannot leave the state with them without my ex’s permission.
Wrong. As long as custody isn’t an issue and there’s no litigation involving custody or visitation schedules, a dad is free to take the kids out of state. Otherwise, a divorced dad in New Jersey could not take the children to New York to visit grandparents or on a vacation to Disney World. Preventing this never was the intent of the legislation. Likewise, if the mother is the custodial parent and there is no pending litigation regarding the children, she is free to come and go with the kids.
7 – A father never gets custody of the children.
This used to be the case and mothers nearly always obtained custody unless she was found to be unfit. More recently, courts are more receptive to an argument made by a father getting a divorce in New Jersey who wants custody. And, if the kids are in their teens, a judge is likely to ask them with which parent they want to live. Custody is not as cut-and-dried as it once was.
8 – Living with my ex is the same as being married.
Regardless of how long a couple lived together, New Jersey law has not recognized a “common law” marriage since 1939 when it was wiped off the books. An interesting question is what happens when a couple who moved to New Jersey from a state that recognizes common law marriages decides to split. The U.S. Constitution mandates that each state must recognize “public acts, records and judicial proceedings of every other state.” If there is an enforceable common law marriage from another state, New Jersey would have to recognize it in a divorce proceeding.
New Jersey Divorce for Men and Fathers Without Misconceptions or Confusion
If you are a man or father in New Jersey who is thinking about or planning to divorce your wife, please call us to get answers to your questions. Don’t rely upon information from friends or you see on the internet because it’s probably wrong or at least inaccurate or incomplete. Call me or any of our family law attorneys at either 973.562.0100 in Nutley or, in Montclair, at 862.245.4620.