Family Law

1. GROUNDS FOR DIVORCE

A divorce is a means of terminating a marriage. There are several grounds upon which a divorce can be obtained. These include the following:

NO FAULT:

  • 18 month separation

FAULT:

  • Irreconcilable Differences
  • Extreme (Mental or Physical) Cruelty
  • Adultery
  • Desertion
  • Constructive Desertion
  • Habitual Drunkenness or Drug Habituation
  • Imprisonment
  • Institutionalization (for mental illness)
  • Deviant Sexual Behavior

Note that a Complaint for Divorce can contain more than one ground for divorce, and each ground is set forth in a different Count in the Complaint. Many people choose Irreconcilable Differences because (1) the parties do not have to be separated for any length of time to qualify, and (2) the Complainant does not have to accuse his/her spouse with any specific negative conduct.

2. GROUNDS FOR ANNULMENT

An annulment is a declaration that a marriage is void. If an annulment is granted, it is as if the marriage never existed at all. There are several grounds upon which an annulment can be obtained. These include the following:

  • One spouse was still married to someone else, when the subject marriage took place.
  • The parties are within the degrees of relatedness prohibited by law.
  • Either or both of the parties did not have the capacity to marry as the result of a lack of understanding due to a mental condition, influence of intoxicants/drugs/or other similar agents; lack of mutual assent to the marital relationship; duress; fraud as to the essentials of the marriage; and there has been no subsequent ratification of the marriage.
  • One spouse was under the age of 18 years old when the marriage occurred, and that spouse does not confirm the marriage after reaching the age of 18 years old.
  • Under conditions permissible under the general equity jurisdiction of the Superior Court.

3. EQUITABLE DISTRIBUTION AND ALIMONY

A divorce often involves the equitable distribution of property, which includes assets, as well as debts. Equitable distribution does not necessarily mean that all property and debts are divided equally between the parties. There are many factors which the Court takes into account in determining equitable distribution of the assets and debts of the parties. Each case is different and must be evaluated based upon the particular facts and circumstances involved.

Similarly, there are many factors which the Court takes into account in determining whether alimony and/or spousal support is appropriate. There is no specific formula used to determine alimony and/or spousal support. Each case is fact sensitive, and must be evaluated based on the unique situation of the parties.

4. CUSTODY AND PARENTING TIME

There are two types of custody; (1) legal custody, and (2) residential custody. Having legal custody of a child allows an individual to participate in making decisions involving the health, education and welfare of the child. The parent who a child lives with has residential custody of the child. It is possible for legal custody to be shared jointly between both parents or sole legal custody with one parent. Similarly, it is possible for residential custody to be shared between both parents, or sole residential custody with one parent. Under most circumstances the parent who does not have residential custody, will have a parenting plan providing for specified time with the children.
There are several factors considered in an award of custody, including, but not limited to the following:

  1. the parents' ability to agree, communicate and cooperate in matters relating to the child;
  2. the parents' willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse;
  3. the interaction and relationship of the child with its parents and siblings;
  4. the history of domestic violence, if any;
  5. the safety of the child and the safety of either parent from physical abuse by the other parent;
  6. the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision;
  7. the needs of the child;
  8. the stability of the home environment offered;
  9. the quality and continuity of the child's education;
  10. the fitness of the parents; the geographical proximity of the parents' homes;
  11. the extent and quality of the time spent with the child prior to or subsequent to the separation;
  12. the parents' employment responsibilities;
  13. the age and number of the children.

These cases are fact sensitive and therefore, each case must be evaluated on its own merits.

5. CHILD SUPPORT

New legislation regarding child support shall become effective on February 1, 2017. Presently, the child support obligation continues, until an order is issued terminating the child support obligation. This has caused problems because some payors of child support do not realize that a motion to terminate child support must be filed or the parents must consent using the appropriate court forms to end the child support obligation. This has resulted in non-custodial parents paying child support past the time that they could have ended child support. Commencing on February 1, 2017, child support will end when a child reaches the age of 19 years old. A request to continue child support can be made by the parent receiving child support if certain circumstances are present, such as for example, the child attending college or vocational school full-time or if the child is disabled. This legislation puts the burden on the receiver of child support to request a continuation of child support when a child turns 19 years old, as opposed to the old legislation which put the burden on the payor of child support to file a motion to terminate child support, to end this obligation.

Generally, child support is determined through calculations pursuant to the New Jersey Child Support Guidelines. This is a complex formula, which takes into account many factors such as gross taxable and non-taxable income, mandatory retirement, union dues, prior child support orders, other dependents, government benefits, child's health insurance, work-related daycare, and number of overnights each parent has with the child. It is important to bring the necessary documents to Court to ensure that you get the credit you deserve factored into the New Jersey Child Support Guidelines calculations.

It should also be noted that there are certain situations where the New Jersey Child Support Guidelines do not apply involving for example college students living away from home.

6. JUVENILE MATTERS

Adults who are charged with a quasi-criminal or criminal offense, have their cases heard in municipal court or Superior Court - Criminal Division. However, children who are charged with the same offenses, do not go to municipal or Superior Court-Criminal Division. Their cases are heard in front of a Judge in the Superior Court - Chancery Division - Family Part. If a child's matter is a first offense and/or of a minor nature, sometimes the matter is diverted from the Judge to a hearing officer, juvenile case conference, or a local panel and/or adjustment. It is important to determine the appropriate strategy to get the best result for the child based upon the facts of the case and the forum in which the matter will be heard.
Juvenile Crimes

7. DOMESTIC VIOLENCE

Domestic Violence Restraining Orders are put in place to protect the victims of domestic violence. These orders may ban the Defendant from the marital home, the victim's place of work, or from having any contact with the victim. There are certain elements of proof which must be presented in order for the Court to grant a Temporary Restraining Order and to subsequently order that a Temporary Restraining Order be finalized to a Final Restraining Order. It is important for the victim to understand the elements of proof, so that the case can be effectively presented to the Court. It is important for the Defendant to understand the elements of proof, so that any lack of proofs can be pointed out to the Court.

Final Restraining Orders remain in effect, until further order of the Court. Final Restraining Orders do not expire automatically after a certain period of time.

Domestic Violence proceedings to determine whether a Temporary Restraining Order will be made into a Final Restraining Order are civil in nature, not criminal. However, a violation of a Temporary Restraining Order or a Final Restraining Order is considered to be a fourth degree criminal offense.

Family law matters are fact sensitive. An evaluation of the facts of the case and evidence available, is necessary to determine the best manner in which to proceed. If you still have question and wish to have a consultation, please contact our office at 609-534-2778.

"The statute is N.J.S.A. 9:2-4"