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Divorce

Split

Divorce is often one of the most difficult situations both a couple and an individual can experience. In addition to the emotional trauma that occurs as a result of it, divorce litigation itself can seem never-ending and overwhelming. Villani & DeLuca, P.C., can help you through these trying times with their team of experienced divorce and custody lawyers.

New Jersey is considered to be both a “no-fault” and “fault-based” divorce state.

No-Fault Divorce

Divorce couple

No-fault divorce proceedings are straight forward in that neither party is responsible for proving that the other spouse was responsible for the end of the marriage. A No-fault divorce proceeding will be permitted as long as one of two situations have occurred; separation and/or irreconcilable differences:

Separation - a court will end a marriage based on separation if each spouse has been living in different places for at least 18-straight months

Irreconcilable Differences – a court will end a marriage based on irreconcilable differences if those differences have existed for at least six months

To file a no-fault divorce complaint in New Jersey based on separation, the following must be true:

  • At least one spouse has lived in New Jersey for 12-straight months prior to the filing of the divorce complaint
  • The aforementioned separate living for 18-straight months rule
  • There is no reasonable prospect for reconciliation between the spouses

To file a no-fault divorce complaint in New Jersey based on irreconcilable differences, the following must be true:

  • At least one spouse has lived in New Jersey for 12-straight months prior to the filing of the divorce complaint
  • The aforementioned irreconcilable differences rule whereby the differences have existed for at least six months
  • The irreconcilable differences make it appear that the marriage should be ended
  • There is no reasonable prospect for reconciliation between the spouses

Fault-Based Divorce

Fault-based divorce proceedings are more detail oriented than no-fault since fault-based divorces are based upon specific reasons for the dissolution such as desertion, extreme cruelty, adultery, deviant sexual conduct, drug or alcohol addiction, mental illness, etc.

Divorce sign

For example, desertion occurs when one spouse, against the wishes of the other spouse, leaves for at least 12 months. It is important to note that if the fault-based divorce is going to be predicated on desertion, that the divorce filing not take place prior to the 12-month desertion mark. To file a fault-based divorce based on desertion, the following must be true:

  • At least one spouse has lived in New Jersey for 12-straight months prior to the filing of the divorce complaint
  • One spouse must have deserted the other for at least 12 months
  • Extreme cruelty occurs when one spouse exhibits a propensity to become either emotionally or physically abusive towards the other spouse. To file a fault-based divorce based on extreme cruelty, the following must be true:
  • At least one spouse has lived in New Jersey for 12-straight months prior to the filing of the divorce complaint
  • The most recent acts of cruelty being claimed to have taken place must have happened at least three months prior to the divorce filing.

Property

Property

New Jersey is considered to be an equitable distribution state which means that in a divorce, marital property is to be divided in an equitable fashion. The term “equitable” is different from “equal” in that equitable means fair and/or just. Therefore, in a divorce proceeding, the court will encourage each spouse to reach a settlement on the property that is fair. If a settlement is unable to be reached, as is often the case, the court will weigh the following factors to aid its attempt to split the property amongst the spouses:

  • The duration of the marriage
  • The age and physical and emotional health of the parties;
  • The income or property brought to the marriage by each party;
  • The standard of living established during the marriage;
  • Any written agreement made by the parties before or during the marriage concerning an arrangement of property distribution;
  • The economic circumstances of each party at the time the division of property becomes effective;
  • The income and earning capacity of each party, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children, and the time and expense necessary to acquire sufficient education or training to enable the party to become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage;
  • The contribution by each party to the education, training or earning power of the other;
  • The contribution of each party to the acquisition, dissipation, preservation, depreciation or appreciation in the amount or value of the marital property, as well as the contribution of a party as a homemaker;
  • The tax consequences of the proposed distribution to each party;
  • The present value of the property;
  • The need of a parent who has physical custody of a child to own or occupy the marital residence and to use or own the household effects;
  • The debts and liabilities of the parties;
  • The need for creation, now or in the future, of a trust fund to secure reasonably foreseeable medical or educational costs for a spouse or children;
  • The extent to which a party deferred achieving their career goals

Spousal Support

Alimony

Spousal support exists when a court rules that one spouse is obligated to support the other spouse, financially, on a temporary to permanent basis. Not all divorce cases end in the payment of spousal support, however, the court will weigh the following factors that aid its decision:

  • The actual need and ability of the parties to pay
  • The duration of the marriage
  • The age, physical and emotional health of the parties
  • The standard of living established in the marriage and the likelihood that each party can maintain a reasonably comparable standard of living
  • The earning capacities, educational levels, vocational skills, and employability of the parties
  • The length of absence from the job market of the party seeking maintenance
  • The parental responsibilities for the children
  • The time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, the availability of the training and employment, and the opportunity for future acquisitions of capital assets and income
  • The history of the financial or non-financial contributions to the marriage by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities;
  • The equitable distribution of property ordered and any payouts on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair;
  • The income available to either party through investment of any assets held by that party
  • The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a non-taxable payment

Child Support/Custody

In the event that minor children are involved, the law in New Jersey states that the court will do whatever is in the best interest of the child. This means that the court will do everything possible to lessen the emotional trauma that a child goes through when their parents become divorced.

Kid divorce

It is the preference of the court that the parents come to terms on child custody, however, sometimes this is not possible, especially when the divorce is based upon irreconcilable differences. If that is the case, the court will make a custody determination that is based upon the physical and emotional needs of the child as well as the child's wishes. The court may award one of three types of custody arrangements:

  • joint legal custody to both parents, where one parent is responsible for residential custody;
  • joint physical custody, where both parents provide homes for the child; or
  • sole custody to one parent with visitation

In essence, the court will truly make its decision based upon what it deems to be in the child's best interest.

Generally, child support is calculated by applying a formula that takes into consideration various factors, including but not limited to the family's income and the amount of time each parent spends with the child. The formula was developed by economists at the request of the Supreme Court of New Jersey, with the goal of providing for uniformity and fairness in child support awards throughout the State of New Jersey. The amount of child support paid by one parent to the other is therefore in most cases determined pursuant to the Child Support Guidelines. The formula takes into account the Standard of living and economic circumstances of each parent; All sources of income and assets of each parent; the Earning ability of each parent, including educational background, training, employment skills, work experience, custodial responsibility for children including the cost of providing child care and the length of time and cost of each parent to obtain training or experience for appropriate employment; Need and capacity of the child for education, including higher education; Age and health of the child and each parent; Income, assets and earning ability of the child; Responsibility of the parents for the court-ordered support of others; and Reasonable debts and liabilities of each child and parent.


Call 732-965-3404 today for a FREE consultation on the Divorce Process in New Jersey. Our NJ Divorce Law Attorneys are here for you 24/7!

Vincent DeLuca, Esq.

As a founding partner at Villani & DeLuca, Vincent DeLuca is one of only a few Certified Matrimonial Law Attorney in Ocean County, New Jersey. Mr. DeLuca has helped many clients navigate the delicate details of their own divorce. Mr. DeLuca is also a trained divorce mediator and collaborative divorce attorney. Call today at (732) 965-3404 to speak to Mr. DeLuca or one of our experienced NJ Divorce Lawyers.

Office Location

703 Richmond Avenue
Rt. 35 South
Point Pleasant Beach, NJ 08742
(732) 965-3404
(732) 892-9053 (fax)

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