Ending a marriage or civil union can be a difficult process. Emotions run high, and the legal process can be confusing and complicated. Before you file for divorce or dissolution in New Jersey, learning the basics of the marital dissolution process can help you prepare and plan for the road ahead. To help you learn more, here are answers to some of the most frequently asked questions about the process.
Am I Eligible to Get a Divorce in New Jersey?
Before you file for divorce or dissolution, you must determine whether a New Jersey county court is a proper forum for you to begin the process. (A “divorce” ends a marriage, while a “dissolution” ends a civil union, but the legal process is the same.) Other than in certain limited cases, you must have been a resident of New Jersey for at least one year prior to filing a divorce or dissolution action.
Do We Have to Go Through Divorce Court?
If you and your spouse agree on an amiable divorce, you have a few options. If you have little to no marital property and no children, especially if you’ve been married a relatively short amount of time, you can file an uncontested divorce. In this situation, only one party files paperwork, which is agreed upon (not contested) by the other spouse. This is the quickest, easiest way to obtain a divorce order.
If your situation is a little more complicated and you have property or kids, you can explore collaborative divorce. In a collaborative divorce proceeding, each party retains his or her own attorney. The parties and their lawyers then meet regularly, often with the help of a mediator who tries to guide the couple towards a mutually acceptable dissolution or divorce agreement that is ultimately entered with the court. Other professionals, such as marriage or divorce counselors and psychologists, may also help make sure that each side is adequately represented and that outstanding issues are resolved. This approach allows the couple to take some of the hostility out of the divorce proceedings, to devise a mutually acceptable settlement, and to agree on ways in which post-divorce conflicts will be resolved.
Do I Have to Prove “Fault” to Get a Divorce?
New Jersey has both fault-based and “no-fault” divorces. In a no-fault divorce, the court will end the marriage if you have been separated and living in different places for 18 consecutive months or more or if you claim “irreconcilable differences.” Neither party is considered to be responsible for causing the marriage to end. A divorce based on fault, on the other hand, alleges that one spouse has been deserted or the victim of extreme cruelty or that a spouse committed another act (like adultery) that led to the downfall of the relationship. In a fault-based divorce, the parties have the opportunity to put forward evidence of fault or misconduct to determine whether or how much alimony or spousal support is reasonable and just. (“Fault” will not be considered in dividing assets or determining child-related matters.)
Will My Spouse Get “Half of Everything”?
Many people wrongly believe that the court must award a certain amount of a couple’s assets to each spouse, e.g., that “your spouse will get half of everything.” The court will hear evidence and determine how to divide personal property (such as furniture or cars), real property (such as a house or land), and assets like severance pay, pension rights, personal injury awards, as well as debts, based on a number of different factors in a manner that the court believes to be fair. This is called “equitable distribution.”
The court will only divide up “marital assets,” that is, property acquired by either party during the time between the date of their marriage or civil union and the date of the filing of a divorce complaint. There are some limited exceptions, including gifts received from a third party or property left in a will to one spouse singly, that will not be considered marital property so long as those assets have been kept separate from the other spouse (not put into a joint bank account or deed in the name of the other spouse). Similarly, property acquired by one spouse before the marriage that has not been commingled with marital assets is typically not subjected to equitable distribution. Essentially the same rules apply to the court’s distribution of debt; for example, student loans one spouse incurred before the marriage generally will remain his or her own responsibility after a divorce. The court will consider oral and written evidence, which may include financial expert reports, to determine which assets should be considered marital property and how they should be divided.
How Long Will the Process Take?
New Jersey law mandates a “waiting period” of at least thirty-five (35) days after the defendant is served with the complaint for divorce before the court will enter a divorce decree or order of dissolution. Your spouse can agree to waive this waiting period, which is designed to allow him or her to file a response or request an appearance to dispute any relief requested in the complaint. In this situation, you can be divorced as soon as the court is able to schedule a hearing date – potentially as little as two weeks.
A simple, relatively amiable divorce with cooperative spouses can typically be finished in as little as two or three months, but this will depend on the county court schedule and the availability of hearing dates. Courts can be very busy, causing delays of weeks or months. If your divorce is contested, or you need to retain experts to value assets or negotiate custody agreements, your divorce may take many months or more than a year to finalize.
Do I Need a Divorce Lawyer?
While you aren’t required to have an attorney to have an uncontested divorce in New Jersey, it’s a good idea to at least have a lawyer look over your paperwork before you file it to ensure that you have complied with the requirements and aren’t making any mistakes. If your divorce is contested, or if you must divide assets and negotiate child custody, spousal support, or child support, you should seek counsel. A divorce attorney is your advocate and counsel through the often complicated and frustrating legal process and will help you preserve your rights.
The experienced divorce attorneys at the Mark Law Firm can help you, whether you need advice on a simple uncontested divorce, representation through the collaborative divorce process, or counsel through a complex or contested divorce proceeding and post-divorce matters. Contact us to make an appointment with one of our Newark, Oradell, or Basking Ridge divorce attorneys.