Lawyers in New Jersey & Pennsylvania
Princeton, New Jersey: 1.609.452.8411
Hamilton, New Jersey: 1.609.585.1300
Newtown, Pennsylvania: 1.267.352.3427
Frequently Asked Questions - Matrimonial & Family Law
Prenuptial Agreements:
- What is a legally enforceable prenuptial agreement?
- Who should consider entering into a prenuptial agreement?
- Once I sign a prenuptial agreement, am I bound to it?
- How can I protect myself in a prenuptial agreement?
Divorce:
- How can I best protect my premarital business in the event of divorce?
- How much does a divorce cost?
- How long will the process take?
- How is a divorce initiated?
- What is a "no fault" divorce?
- Who will get custody of the children?
- What about alimony and support?
- What is alimony?
- When is alimony awarded and on what basis?
- What is permanent support?
- Do I have the right to request that my spouse leave the house once I file for divorce?
- What will happen to the house and all the things we've bought since the marriage?
- What do I do if my spouse has filed for divorce?
- What are the grounds for divorce in New Jersey?
- How is child support calculated?
- How long must I pay or can I receive child support?
- Can I receive child support or alimony before I am divorced?
- When is a divorce final?
PRENUPTIAL AGREEMENTS:
What is a legally enforceable prenuptial agreement?
A prenuptial agreement outlines the spouse’s rights in the event of a divorce. In order for such an agreement to be legal and enforceable, each party must have independent counsel, each party must fully disclose his or her assets and income as to the date of the agreement, and the agreement cannot be so one sided as to shock the conscience of the court. The purpose of a prenuptial agreement should not be to furnish one spouse with an advantage over the other. Instead, it should be used as a means of addressing what may be a complicated issue in an inexpensive and fair manner.
Who should consider entering into a prenuptial agreement?
Generally speaking, anyone bringing assets into a marriage should consider a prenuptial agreement. Seniors often use prenuptial agreements to waive the elective share of each other’s estates, so their children will be left with what they wish them to have.
Once I sign a prenuptial agreement, am I bound to it?
That depends on the circumstances. Most cases where a court has thrown out a prenuptial agreement involve situations in which one party was pressured into signing or was not given the proper information concerning the other party’s finances.
How can I protect myself in a prenuptial agreement?
The best way to protect yourself is to obtain legal counsel. An attorney will ensure that you are informed of all laws and rights regarding a prenuptial agreement such as the requirement for full disclosure of each party’s assets and liabilities before any agreement is signed.
DIVORCE:
How can I best protect my premarital business in the event of a divorce?
The best way to protect your premarital business is through a legally enforceable prenuptial agreement. To avoid the potentially expensive process of determining and distributing a portion of your premarital business to your spouse, a prenuptial agreement establishes each spouse’s rights in the event of a divorce. See above for more on Prenuptial Agreements.
How much does a divorce cost?
It always depends upon the complexity of the case. Once an attorney ascertains the essential facts, he or she can better estimate the potential legal fees.
How long will the process take?
The time required to complete a divorce depends on many factors, including the degree to which you and your spouse may have agreed on several matters. A prior prenuptial agreement could also impact the length of the process. Your lawyer can offer some general guidelines on the length of delay which you are likely to experience in your particular case.
How is a divorce initiated?
The attorney for the person seeking the divorce will file a formal document, called a "complaint," with the appropriate court. This complaint includes information on the marriage, residency, present living arrangements, children of the marriage, and the specific reasons claimed for seeking a divorce. A copy of the complaint will be served on the spouse, either by mail or in person by a sheriff. If your spouse is represented by an attorney, that attorney, instead of your spouse, may receive the complaint.
In New Jersey, all divorces and legal matters pertaining to the family are heard in the Family Part of the Superior Court.
What is a "No Fault" divorce?
"No Fault" is the term some people use to describe a divorce in which the cause for court action was separation in different homes for 18 or more consecutive months. If a husband and a wife have lived separate and apart for that length of time, either may file for divorce. The cause is the length of separation. Neither spouse is required to offer any evidence of fault. "No fault" does not mean uncontested. An uncontested divorce occurs when all economic factors have been settled.
Who will get custody of the children?
The welfare of the children is the primary concern of the court. Property rights and the welfare of the adults involved are secondary. Neither parent is automatically entitled to custody of any children. The judge may consider many factors which will be discussed in court at a hearing. The factors may include ages and sexes of the children, compatibility with each parent, ability of the parent to care for the children, and the personal conduct of each parent. The primary consideration of the court is to make a determination as to what is in the best interest of the children.
What about alimony and support?
The judge will decide these and other issues after hearing what is said in court. The final decision will depend on the testimony which is given in court. The court may also award rehabilitative or reimbursement alimony. Rehabilitative alimony is paid only for a limited period of time and is designed to help a spouse receive training or further education. Your lawyer will help you to make your needs and wishes clear to the judge.
What is alimony?
Alimony, also known as "spousal support," is money that is paid from one spouse to another for the day-to-day upkeep of the spouse with fewer financial resources. Sometimes alimony can also be used to pay back a debt. For example, if one spouse paid to put the other spouse through college or graduate school, alimony could be used to pay back the spouse who provided the initial financial support for the education.
When is alimony awarded and on what basis?
Alimony is ordered by a court on the basis of one spouse’s need or entitlement and the other spouse’s ability to pay. Although commonly alimony payments are made from men to women, it is possible that women may be required to pay to support an economically dependent partner. A person who pays support may deduct it from his or her income for tax purposes and, generally, the one who receives it must pay taxes on it (unless the parties agree otherwise).
What is permanent support?
Sometimes, courts award what is called permanent support to provide money for a spouse who cannot become economically independent. The most common reason that courts order permanent support is that the recipient, because of advanced age or chronic illness, will never be able to maintain a reasonable standard of living without support. Generally, courts uses the same criteria that they use to divide property in order to determine the amount of permanent support.
Although it is called permanent support, the support is subject to change or may cease completely if the ability of the payer or the needs of the recipient change significantly. It ends if the recipient remarries, and it may end if the recipient lives with someone else.
Do I have the right to request that my spouse leave the house once I file for divorce?
If both of your names are on the deed for the house, then you both have the right to keep that as your residence. Due to the high cost of living in the metropolitan area and/or for the sake of the children, many spouses decide to continue living together while the divorce is proceeding. However, if cohabitation between you and your spouse is creating a dangerous situation, then you may require a restraining order, which would restrain your spouse from the marital residence.
What will happen to the house and all the things we've bought since the marriage?
In New Jersey each spouse is entitled to a fair share of all the property acquired during the marriage. If the parties are unable to negotiate the terms of property distribution, the judge will decide on an "equitable distribution" of property after hearing testimony. Equitable distribution is not automatically a 50-50 decision, because New Jersey is not a "community property" state. Moreover, in making the division of assets, the court may not consider marital fault or the reasons for the divorce when dividing the property.
What do I do if my spouse has filed for divorce?
You should consult a lawyer promptly for advice. You may contest the reason claimed for the divorce, and/or contest child custody, child support, alimony, and equitable distribution by filing the proper documents.
Even if you agree to a divorce, you should consult an attorney immediately for professional advice on all other issues in your case so you understand the choices you can make and the possible consequences of doing nothing.
What are the grounds for divorce in New Jersey?
Under New Jersey laws, divorce may be granted for any of the following causes:
- Adultery
- Willful and continued desertion for 12 or more months. Either physical desertion or refusal to have sexual relations with the other spouse may establish this cause.
- Extreme cruelty, including any physical or mental cruelty that endangers your safety or health, or which makes continued living together improper or unreasonable.
- Separation, if separate and different places of living have been maintained for at least 18 consecutive months or more and there is no reasonable prospect of reconciliation.
- Voluntarily-induced addiction or habituation to a narcotic drug or habitual drunkenness for 12 or more consecutive months.
- Mental illness which resulted in the spouse being kept in an institution for 24 or more consecutive months after the marriage began.
- Imprisonment of the spouse for 18 or more consecutive months after the marriage began. (This charge for divorce can be charged after the defendant's release from prison only if the husband and the wife have not resumed living together after imprisonment ended.)
- Deviant sexual conduct voluntarily performed by the defendant without the consent of the spouse.
How is child support calculated?
In New Jersey, child support is determined essentially by taking the income of each of the parties in addition to several other factors and plugging them into a set formula that has been determined by a committee of the New Jersey Supreme Court. The amount of time each party spends with their children is also a factor, as is the requirement to pay for child care. The only way to make a definitive answer, however, is to have all the pertinent information available and then utilize the Child Support Guidelines in New Jersey step by step to determine a final amount.
How long must I pay or can I receive child support?
Child support concludes upon the emancipation of the child or children at which time the child is expected to be self supporting. However, there is no fixed time for emancipation and this time will be determined by the Court on a case by case basis.
Can I receive child support or alimony before I am divorced?
Yes. In fact, one does not even have to file a Divorce Complaint to obtain support. Instead, one must file a Complaint for "Separate Maintenance." Even when a divorce is pending, a motion can be filed in order to determine how much support or alimony should be paid pending a final determination of all issues.
When is a divorce final?
A divorce is final once a judge issues a judgment declaring that a marriage has ended under the law of New Jersey. After the divorce is final, changes in some arrangements (custody, visitation rights, amounts of support, etc.) may be reconsidered if either party can demonstrate a change of circumstances to a judge. Your attorney can give you further advice when needed.
