You do not need to become an expert in New Jersey divorce law before you get divorced. But there are four areas I want my clients to understand because they will often have the greatest impact on their children, finances, and lives after the marriage ends:
- Child custody
- Child support
- Alimony
- Equitable distribution
These are different from the legal grounds for divorce, such as irreconcilable differences or adultery. Your grounds explain the legal basis for ending the marriage.
These four issues determine much of what happens because the marriage is ending.
1. Child Custody
If you have children, custody may be the most important issue in your divorce.
New Jersey custody decisions are based on the best interests of the child. The focus is not on which parent wants custody more or which parent believes the other caused the divorce. The question is what arrangement best serves your particular child.
Custody generally involves two related but different concepts. Legal custody concerns responsibility for major decisions involving matters such as your child's education, healthcare, and general welfare. The residential and parenting-time arrangement determines where the child lives and when the child is with each parent. That distinction matters.
Two parents can share legal custody without having an exactly equal parenting schedule. Likewise, a child may live primarily with one parent while both parents remain involved in major decisions.
When parents cannot agree, a judge can consider factors including their ability to communicate and cooperate, each parent's relationship with the child, the stability of their homes, the child's safety and needs, any history of domestic violence, the parents' respective involvement with the child, and other circumstances affecting the child's best interests.
There is no automatic parenting schedule that applies to every New Jersey family.
2. Child Support
Child support is different from alimony because New Jersey has formal Child Support Guidelines that are used as a rebuttable presumption in applicable cases.
The calculation considers financial and parenting information to determine how the parents should share the cost of supporting their children. Both parents have a continuing obligation to contribute to their children's needs.
The calculation can involve each parent's income, the parenting schedule, childcare costs, health-related expenses, taxes and deductions, and other support obligations. But the number produced by the guidelines does not necessarily answer every financial question involving your children.
Parents may still need to address unreimbursed medical expenses, extracurricular activities, educational expenses, college, and other costs that arise as their children grow. And in some circumstances, a court can deviate from the guideline amount when applying it would be inappropriate. When that happens, the reason for the deviation must be identified.
3. Alimony
Unlike child support, New Jersey does not have an official formula that tells you exactly how much alimony should be paid. This is an area where people frequently come into my office with numbers they found online.
“My spouse earns this much and I earn that much, so the calculator says I'll receive $4,200 per month.” Maybe. Maybe not.
New Jersey courts consider statutory factors that include the spouses' financial needs and ability to pay, the length of the marriage, the marital standard of living, income and earning capacities, age and health, parental responsibilities, contributions during the marriage, property received in the divorce, and other relevant financial circumstances. The statute requires the court to consider the relevant factors rather than automatically elevating one over the others.
New Jersey recognizes different forms of alimony, including open durational, limited duration, rehabilitative, and reimbursement alimony. For marriages lasting less than 20 years, the total duration of alimony generally cannot exceed the length of the marriage unless exceptional circumstances justify a longer term.
But that is a limit, not a formula.
A 12-year marriage does not automatically mean 12 years of alimony. The amount, type, and duration still depend on the circumstances of the marriage.
4. Equitable Distribution
Equitable distribution is the process New Jersey uses to divide marital property.
The word equitable is important. It means the court is looking for a fair distribution under the circumstances. It does not mean that every account, house, retirement plan, debt, and piece of property must automatically be divided exactly in half.
Generally, you first need to determine what is marital property, then determine what that property is worth, and finally determine how it should be distributed.
That can include the marital home, bank and investment accounts, retirement savings, businesses, vehicles, stock compensation, personal property, and debts accumulated during the marriage. And don't assume an asset belongs entirely to one spouse simply because only that person's name appears on it.
The analysis can become more complicated with property someone owned before marriage or received through certain gifts or inheritances. Questions involving tracing, commingling, contributions during the marriage, and changes in value may need to be addressed.
New Jersey's equitable-distribution statute directs courts to consider numerous factors, including the length of the marriage, the spouses' economic circumstances and earning capacities, contributions to the acquisition or preservation of marital property, tax consequences, debts, and the needs of a parent who has physical custody of a child to occupy the marital residence.
Don't Negotiate These Issues One at a Time
This may be the most important thing to understand about these four areas. They affect each other.
Your parenting schedule can affect child support. Alimony can affect the income used in the child-support calculation; New Jersey's guidelines specifically address how alimony and child support are calculated when both are being determined.
Keeping the marital home may require giving up cash or another asset. Keeping more retirement savings may affect what makes sense elsewhere in your property settlement. Your support obligations can affect whether you can realistically afford the house after the divorce.
That is why I don't like looking at a proposed divorce settlement as a collection of unrelated victories and losses. You might “win” the house and discover that you cannot afford to maintain it. You might negotiate a favorable-looking retirement division without considering its tax consequences. You might focus entirely on reducing alimony without considering how another part of the financial settlement affects your long-term position.
A divorce settlement needs to work as a whole.
You do not need to memorize New Jersey's divorce statutes. You do need to understand how decisions involving your children, income, support, property, and debts fit together before you agree to something that may affect you for years.
If you are considering divorce and want to understand these issues before making major decisions, my free Divorce Smarter Course explains the New Jersey divorce process in plain English.
Until next time,
Steve