Frequently Asked Questions In Divorce
At the law offices of Morris, Downing & Sherred, our attorneys understand that you will have a lot of questions about your divorce. This is a list of frequently asked questions and answers on issues of separation and divorce that may be helpful in navigating the difficult choices ahead.
- How long will my divorce take?
- Can I shorten the divorce process?
- What are the grounds for divorce?
- Does fault make a difference?
- What are my rights?
- What are Child Support Guidelines?
- Can we be legally separated?
- Can I leave the marital home?
- Can I force my spouse to leave the marital home?
- We want a quick settlement; can we use the same attorney?
- How much will my divorce cost?
Many factors affect the length of time it takes for a divorce to become final. Some cases are concluded in a few months while others take much longer. Sometimes mediation or arbitration of one or more issues can expedite a case. The extent and type of assets subject to distribution, the availability of court time, as well as how well both parties are able to cooperate in reaching an agreement — all of these factors will impact the length of the divorce process. In most cases, your divorce will occur shortly after you and your spouse reach an agreement.
The best way to shorten the time it takes to get divorced is to be reasonable and be guided by the advice of your attorney. Your assistance in providing documents, cooperating with discovery, and responding promptly to your attorney’s requests concerning motions and certifications filed by the other party will avoid delays and speed the resolution of your case, whether it is settled or tried by the judge. However, if your case is settled, the sooner a settlement is reached, the faster the case can proceed to court for a final uncontested divorce.
New Jersey law provides the following grounds for divorce:
- Irreconcilable differences; this is now the most common and is sometimes referred to as “no-fault”
- Separation for 18 consecutive months — parties must live in separate residences during this time
- Extreme cruelty (physical or mental)
- Willful desertion for at least 12 months
- Habitual drunkenness or voluntary addiction
- Institutionalization for mental illness for at least 24 consecutive months
- Imprisonment for at least 18 consecutive months
- Deviant sexual conduct
The fault or wrongdoing of a party in a divorce action generally has no bearing on the way in which assets acquired during the marriage are divided. The court may, but rarely does, consider the grounds for divorce as a factor in determining alimony. Even though fault is an emotional factor in a divorce, it has little influence on the terms of a final settlement.
You have the right to seek custody of or parenting time with your children, alimony, child support, equitable distribution of assets and debts, and in certain cases, counsel fees. You may also use the divorce as an opportunity to resume your maiden name. Depending upon individual circumstances, you may have additional rights, such as money damages for injuries inflicted on you by your spouse.
The court has adopted Child Support Guidelines that assist in fixing the child support obligation of each party to a divorce based upon the respective incomes of the parties and taking into consideration the parenting time of the noncustodial parent. The court may also modify the levels in the guidelines if it decides that, due to the particular circumstances of your family, the amount is unjust or inappropriate. Child care costs and the children’s health care expenses are also routinely allocated between the parties.
Although New Jersey law does not provide for a formal legal separation, it is possible for you and your spouse to agree to live separately and to resolve all financial and child-related issues in a written agreement. This agreement may be incorporated into a Judgment of Divorce in the event you or your spouse files for divorce at a later time. It is also possible to obtain a divorce from “bed and board” that allows you to continue to be married while still giving you and your spouse rights normally granted by the court in a divorce, such as equitable distribution of assets.
You may leave the marital home before the divorce is final, but you should first discuss this with your attorney. In many cases, leaving the home may have serious negative consequences for you, particularly if you are seeking custody of your children and they remain with your spouse in the marital home. Your departure from the home may also create a financial burden for you and your spouse. However, in some situations, particularly where there is domestic violence in the home, physical separation is advisable if the safety of you or your children is in jeopardy.
The court will not usually direct either party to leave the marital home until the divorce is final, except in the event of domestic violence. If you are the victim of physical abuse or harassment, you should call the police for protection. You may also obtain a temporary restraining order from either a municipal or family court judge to keep your spouse out of the marital home if any incident of domestic violence occurs. A hearing will be held within 10 days. If the court determines that there is sufficient evidence to restrain your spouse from returning to the house on a permanent basis, a final restraining order will be entered.
Although neither party is obligated to retain an attorney for a divorce, if they choose to do so, they each must retain their own attorneys. No matter how amicable a divorce may be, all divorce proceedings are adversarial in the eyes of the court. There are certain results you may desire that are not in the best interests of, or desired by, your spouse. As soon as differences develop, a conflict arises.