There are many laws that affect divorcing couples here in New Jersey.
But as a NJ divorce lawyer for the past 37 years, I feel that the following three laws are especially important because they directly affect what happens to your property, your relationship with your kids, and how much of your money you get to keep.
The first law involves your property, the second law involves your kids, and the third law involves your money.
1. EQUITABLE DISTRIBUTION OF MARITAL PROPERTY
New Jersey is an equitable distribution state.
Unlike "community property states", where marital property is automatically divided equally, in New Jersey the Court will make an award to the parties to effectuate an "equitable distribution" of property.
Equitable means "fair".
In trying to reach its conclusion as to what might be "fair" in your case, the Judge will consider these factors:
1. the length of your marriage;
2. the age of both you and your spouse;
3. the physical health of both you and your spouse;
4. the emotional health of both you and your spouse;
5. the income brought to the marriage by both you and your spouse;
6. the property brought to the marriage by both you and your spouse;
7. the standard of living that your family has lived;
8. any written agreement that you and your spouse may have entered regarding your property;
9. the current economic circumstances of both you and your spouse;
10. the current income and earning capacity of both you and your spouse;
11. any contributions that either of you made to the education or earning power of the other spouse;
12. any contribution to the acquisition or preservation of property that either of you made;
13. any tax consequences of a proposed property distribution; and
14. any other relevant factors.
The Court will presume that you and your spouse each made a substantial financial or non-financial contribution to the acquisition of income and property while married.
This presumption is a huge point for you to understand. It often results in a relatively equal distribution of marital property, even if one party earns all the money and the other does not work outside of the home but rather takes care of the home and children.
This presumption can be refuted, according to the law, but in my personal experience, I can tell you that it is difficult to refute.
2. CHILD CUSTODY
The New Jersey custody statute aims to ensure that minor children have frequent and continuing contact with both parents after separation or divorce, and to encourage parents to share the rights and responsibilities of child-rearing.
"Physical custody" is a term that refers to how much time each parent will spend with the child.
"Legal custody" refers to which parent or parents get to make major decisions involving the child's health, education, and general welfare.
The law makes it clear that the rights of both parents are considered equal (but that is a very different thing from saying that both parents will ultimately be awarded equal legal custody rights or equal physical custody rights.)
The Judge may award joint custody, sole custody with appropriate parenting time for the noncustodial parent, or any other custody arrangement deemed by the Judge to be in the best interests of your child.
When making a custody award, the judge must consider various factors, including:
1. the parents' ability to agree and communicate;
2. the child's relationship with each parent;
3. the child's relationship with each sibling;
4. any history of domestic violence;
5. the child's safety;
6. the child's needs;
7. the stability and quality of the home environment that is offered by each parent;
8. the fitness of the parents for custody.
The Judge may appoint a lawyer to represent the child's interests.
While judges are expected to apply the law to the facts of each case, in practice, my experience over the past 5 or so years is that very, very often judges are awarding equal, 50/50 physical custody.
Similarly, for as long as I have been practicing divorce law, judges have almost always in my experience awarded equal legal custody.
The Take Away?
It's pretty likely in many cases (not all but many) that the end result will be that both parents have equal legal custody (ie, decision making custody) and both parents (if they both want it) will likely end up with roughly and often exactly 50 percent physical custody (ie, actual time spent with the child.)
Now, as indicated above, neither of those conclusions are even suggested by the law.
I am telling you that in my experience, though, that is what is tending to happen.
Can you fight this reality?
Absolutely, yes.
Is it possible to get a different result than 50/50 on custody?
Absolutely, yes.
It's just hard to do today.
In my opinion.
3. ALIMONY
The New Jersey alimony statute lists 14 factors that must be considered when a judge determines the length and the amount of alimony.
These factors include:
1. financial need of a party;
2. the parties' ability to pay alimony;
3. the duration of the marriage;
4. the parties' age;
5. the parties physical health;
6. the parties emotional health;
7. the parties' earning potential; and
8. the financial and non-financial contributions to the marriage of you and your spouse.
For marriages of less than 20 years, alimony usually cannot exceed the length of the marriage.
The Judge can consider exceptional circumstances when the parties' ages, dependency during the marriage, health, career sacrifices, and disproportionate distribution of assets are factors that may require an adjustment to the duration of alimony.
But...more often than not...I'm seeing people mediate the alimony issue, which often ends up with the parties agreeing that the higher income party pays the lower income party 25% of the difference in their incomes for an agreed upon period of time.
That IS NOT how NJ law says alimony should be determined...but it is what many mediators and lawyers are recommending that people agree to.
THE TAKEAWAY
Property distribution, child custody, and alimony are all supposed to be determined by applying the facts of your particular case to the law.
But...and here's the big "BUT"... from what I am experiencing "in the trenches" of divorce court here in New Jersey, the end result of so many cases tends to be share the kids equally, share the property equally, and alimony will be 25% or so of the difference of the parties' respective incomes for an agreed upon period of time.
I'm not placing a value judgment (ie, "it's good" or "it's bad") on any of this...I'm just telling you what I am experiencing.
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Steven J. Kaplan, Esq.
Specializing In Divorce
In Monmouth County
5 Professional Circle
Colts Neck, NJ. 07722
www.KaplanDivorce.com
(732) 845-9010