New Jersey Family Law & Divorce FAQs
Answered by the Family Law and Divorce Attorneys at Weinberger Law Group
Many common topics and FAQs are addressed by the family law and divorce attorneys at Weinberger Law Group in New Jersey. Additional frequently asked questions are answered more in-depth and found in the navigation to the left and at the bottom of this page. Have a question that you don't see addressed here? Contact us. We are here to inform and help you better understand concerns in family law and divorce in New Jersey.
The following common topics and FAQs are addressed below:
Video: How long does it take to divorce in New Jersey?
Attorneys, Legal Fees, Costs and Retainer Agreements
Q: Do I need to hire an attorney to handle my divorce or other family law matters?
A: You are not required to retain an attorney to handle your divorce or family law matter; however, there are intricate nuances contained within the family and matrimonial laws that are not always black and white. Having an expert on your side who is educated in all aspects of this field places you at an advantage and vise versa if you do not have an attorney. An experienced New Jersey family law attorney, particularly a Certified Matrimonial Attorney by the Supreme Court of New Jersey, can simplify your otherwise complex experience.
Q: Should I choose my divorce or family law attorney based on reputation or my comfort level?
A: Ideally both. It is important to find a lawyer who gives you confidence, who you feel a connection with and who you believe will work diligently to ensure that you and your family's legal interests are protected. In our extensive experience, we have seen that some people hire an attorney because they view them as a pit bull and they will win any fight worth fighting. The problem with this type of attorney is that a pit bull will fight for the sake of fighting instead of working hard to resolve your matter. A pit bull can drive your legal costs through the roof because litigation is extremely expensive. This is why we always ask who the other side has retained as their attorney because we can typically tell you immediately if that attorney is likely to assist in productive negotiations and settlement talks for the benefit of both parties and their family or if they are the type of attorney who will take your matter to court at all costs. Either way, we will be prepared.
Q: Can my spouse and I use the same attorney for our divorce or family law matter?
A: In a family and matrimonial matter you and your spouse can use the same attorney if this lawyer is serving as your joint neutral mediator. Otherwise, it is a conflict of interest and it is impermissible. Should both parties elect to have representation, then each party must receive independent advice from separate counsel.
Q: What is a retainer agreement?
A: A retainer agreement is a contract between you and the law firm where your rights and responsibilities to each other are outlined. You are strongly encouraged to read and understand the retainer agreement before signing the document as it is a binding legal contract. The retainer fee amount is a sum that the law firm requires that you pay as an advance against work to be done. This means that after you retain our law firm by signing the retainer agreement contract and pay the retainer fee, our law firm is now able to start working on your case and the law firm will get paid from the fee money you initially provide. If those funds are depleted, a refresher retainer will be required by the law firm in order for the attorneys to continue to work on your case.
Q: Does a divorce and family law firm that requires a smaller retainer amount mean that they will charge less overall if I retain them?
A: Not necessarily. A common misconception is that a law firm that requires a smaller retainer agreement means that your divorce or family law matter will cost less if you retain that firm. This is absolutely incorrect because the initial retainer amount has nothing to do with how much work and how many hours will be required to resolve your matter. Unfortunately, some law firms will use this lower retainer amount as a way to play on this misconception and lure potential clients to sign up for their services. Of all the criteria you will be considering to determine which law firm and attorney is right for you, the amount of the initial retainer fee should not the most heavily weighed factor.
Q: How much will my divorce or family law matter cost?
A: While we can never accurately quote a definitive price for a divorce or family law matter, there are some guidelines that can help you determine your final cost. The cost of your matter will be predominantly determined by you, your spouse and both attorneys. If you and your spouse's attorneys can communicate effectively and efficiently, exchange financial documents that are required without any game-playing and can negotiate in good faith, it will be easier to reach a reasonable agreement which will result in lower costs to both you and your spouse. The cost of your divorce case can also be proportionate to the number of issues you have in your matter and the degree of complexity of those issues. For instance, two parties with no children may have fewer issues and incur less costs than parties with children. Our attorneys' objective is to work with you towards reaching an amicable resolution to your divorce because we recognize that this will be most beneficial to you and your family in the long term, both from a financial stand point and from an emotional and psychological perspective.
Q: Can I force my spouse to pay for my legal fees in a divorce or family law matter?
A: An application can be made to the court for your spouse to pay your legal fees in a divorce or family law matter. The request might be granted if there is a large disparity in income between you and your spouse or for other causes. For example, there are occasions when a judge will court mandate one party make counsel fee payments for the other party when there was bad faith or a default on a previously awarded support payments. There is, however, no guarantee that any legal fees will be awarded. Some parties settle the legal fee issue by agreeing to make counsel fee payments from joint assets and accounts for both lawyers and all experts in the case.
Preparing Your Documents
Q: What documents should I gather in order to prepare for my first meeting with my divorce attorney?
A: The short list of items to bring includes three paystubs from your employer along with three from your spouse's employer, income tax returns for the last three to five years and any recent bank and/or retirement account statements. There is a more extensive list that your attorney will need in order to adequately answer all your questions, but this will get you started.
Q: What if I don't have all that information before I meet with my divorce or family law attorney?
A: It's fine. All of the documents that will be needed to help to settle your case can be produced later. While it is helpful for our attorneys to have the information and documents available at the initial consultation so that we can provide you with more specific responses to your questions. It is not necessary for you to bring all the information to an initial consultation.
Q: What is the discovery process in a divorce or family law matter?
A: The discovery process can be long and arduous. Parties may be required to complete significant document exchange including the production of financial records in their possession. It might be beneficial for you to read our article entitled "All Aspects of the Discovery Phase of the Discovery Process" which can be found on our web-site on the articles page.
Filing For Divorce
Q: When is the right time to file a Complaint for Divorce?
A: Each case is different and it really depends upon the facts of your specific matter. There are some reasons to wait, especially if it appears that your divorce matter can be resolved amicably, without court intervention. However, there are also some cases where immediate action is required. The most important thing for you to do is to be candid with your lawyer so the both of you can discuss your options for filing.
Q: What are the requirements for filing a petition for divorce?
A: In order to file a petition for divorce, you need grounds for divorce. When filing a Complaint for Divorce, we would include certain details in the filed document such as names and addresses of both parties, your date of marriage, place of marriage, children's names and dates of birth and cause of action language. Other legal documents must be filed along with the Complaint for Divorce such as an Affidavit of Insurance Coverage which identifies all insurances (ie life, health, auto and homeowners insurances) existing at the time of the Complaint for Divorce; the Confidential Litigant Information Statement, which is a document geared toward identity theft prevention; a Certification between you and your lawyer acknowledging that you were advised about your right to alternative dispute resolution (mediation for instance). There is a filing fee for the court to process the paperwork and there are service of process requirements to ensure that the non-filing party receives the Complaint.
Q: Can my spouse and I get divorced by agreement using "irreconcilable differences"?
A: Yes. There is a requirement at the time that you file your Complaint for Divorce utilizing the grounds for Irreconcilable Differences that there has been a break-down in the marriage for 6 months or more. This encourages litigants to resolve their disputes amicably without any mud-slinging as no details about the break-down of the marriage are included in the Complaint at all. Filing under the ground of Irreconcilable Differences allows you to refrain from disclosing the intimate and detailed "reasons" for wanting the divorce which can assist you and your spouse to preserve your relationship when possible, expedite settlement and final resolution of your matter.
Q: Aside from Irreconcilable Differences, what other grounds for divorce exist in the State of New Jersey?
A: There are a number of grounds for divorce to select from when filing a Complaint for Divorce. There are many grounds that parties usually do not choose although they are readily available such as:
- Habitual Drunkenness
- Addiction to Narcotics
- Deviant Sexual Acts
The more common of the grounds used when filing a Complaint for divorce are:
- Desertion: Many litigants believe at first glance that this applies to them because the label is deceiving. Desertion is not when a spouse picks up and leaves the home or "abandons" the family. Desertion is when there is a lack of physical intimacy for a statutorily required period of time.
- Extreme Cruelty: These grounds are accompanied in the Complaint for Divorce with a description of the conduct you allege to have risen to the level of extreme cruelty, which your attorney can counsel you as to the extent of detail necessary. There is a residency requirement in the State of New Jersey to file with this ground.
- Adultery: Most parties who select this ground for divorce also choose another ground along with Adultery, such as Extreme Cruelty, since there is a proof requirement that goes along with the adultery claim.
- Separation: You and your spouse are required to live in separate residences for a period of 18 months or more to be eligible to use this ground for divorce.
Length of the Divorce Process
Q: How Long Does It Take To Get A Divorce In New Jersey?
A: The length of time it takes to get a divorce in New Jersey depends upon the issues and the reasonableness of the parties and attorneys in your matter. For instance, if you do not have any child custody issues in your case, there is a higher likelihood that your case will take less time to settle than a case including custody and parenting time issues. If your case involves one or more businesses, then we may need to involve forensic experts and accountants to determine the value of the businesses for equitable distribution purposes, which can extend the time it takes to resolve your matter. Cases involving W-2 wage earners are less complex and take a shorter period of time as fewer financial records typically need to be examined. The Best Practices in the State of New Jersey indicates that it should not exceed one year from the date of the filing of a Complaint for Divorce until the issuance of a Final Judgment of Divorce. Both practitioners and judges recognize that this may not always be the case. Some matters resolve from start to finish in only a few months while others can exceed the one year cap if there are complex custody issues, businesses are involved, significant discovery is needed or other involved issues that need to be handled in due course.
Staying in Relationship for the Children
Q: Should I continue to stay in a bad relationship for the sake of the children?
A: We as attorneys are not therapists so we strongly encourage such questions be directed to a licensed therapist. We do encourage clients to undergo counseling or therapy during the divorce process, since it can be a highly emotional and draining time in your life. Children of all ages tend to be very perceptive and know when you are unhappy, but exactly how this impacts the children and the household varies from case to case.
House Related Issues
Q: Do I have to continue to live in the house with my spouse during the divorce process?
A: This too depends upon the facts of your particular case. Unless your spouse voluntarily moves out, Judges are generally loathe to make someone leave a marital residence, unless domestic violence exists.
Q: Can I change the locks on the house if my spouse moves out but we still own the house together?
A: Generally yes, with notice to the other party, but this too is a fact-specific question.
Family Pet Related Issues
Q: Is it considered "custody" when you fight over the family pet?
A: No, although the courts recognize the depth of feelings people have for their pets, it is not considered custody in the eyes of the court. The courts deem pets to be "property" that needs to be divided. It is rare for any time-sharing arrangement to be worked out between divorcing couples or for the parties to determine where the family pet will next reside. Typically, one party keeps the family pet in a settlement. It is obviously an emotional issue, but one that requires a resolution in many cases.
Financial and Modification Questions
Q: Can I take 1/2 of the money out of a joint account during the divorce process without getting into trouble?
A: Truly, that depends on the facts and the Judge. We never recommend that a party create an unnecessary hostile situation.
Q: How is property divided in a divorce?
A: New Jersey is an equitable distribution State. This means that all marital property (assets and liabilities) is divided in a manner considered to be fair and equitable, not necessarily equal.
Q: Is there any way I can file for divorce without disclosing my financial assets?
A: Financial disclosure is required and it protects you. When you disclose all of your assets and liabilities, your spouse is left without any remedy to come back to the court to claim fraud. If you fail to disclose certain assets, you are potentially harming yourself and leaving yourself open to future proceedings. The Case Information Statement may assist you in completely and accurately defining your assets and liabilities.
Q: How do I know what property goes to my spouse and to me when we divorce?
A: When you enter into a Marital Settlement Agreement (MSA), receive a Notice of Equitable Distribution or a Judgment of Divorce, your final document will spell out all of your rights and those of your spouse as to support, asset and debt distribution and all other issues in your matter.
Q: Can the provisions in a divorce decree be changed afterwards?
A: Terms and provisions are often subject to modification. If you and your former spouse are in agreement and do not want to formally implement the changes on a court document, you are free to make the change on your own without any memorialized document. For example, if you decided to change an every other weekend visitation schedule between one parent and a child or fluctuate the pick up and drop off times. You are not required to go back to court in order to make this modification if you are both in agreement. However, to change a provision formally, a Consent Order is recommended. In this situation, both parties would sign the document with your lawyers and the Consent Order is sent to a judge who signs and files the document, thereby making the changes official and fully enforceable in the future.
Q: My spouse wants to attend mediation to resolve our divorce disputes but I don't understand why I should go. Can't we just go to Court?
A: Private mediation is a process that requires both parties to willingly attend. If you are not interested in participating, you are not required to go even if your spouse tries to force you to attend a session. However, if you proceed through the court system and are unable to resolve your case at certain intervals, the court mandates that you and your spouse attend certain court mandated mediation sessions depending on your specific issues. Custody and parenting time mediation occurs with a court mediator if you have not settled your custody and visitation issues shortly after filing your initial Complaint and Counterclaim documents. Economic mediation is also court mandated if you have not yet resolved your case after the Early Settlement Panel program. Mediation provides a confidential and secure environment where you can state your positions and receive non-binding recommendations.
Q: Can I change my name at the time of divorce?
A: Yes. At the time of the final uncontested hearing or at the trial, you will have the opportunity to resume your premarital surname. If you indicate that you want to use your premarital surname, you will be asked a few questions in court such as whether your intention of resuming your former surname is for the purpose of defrauding creditors or avoiding criminal prosecution or bankruptcy. The judge will include your desired last name on your Judgment of Divorce. The official Gold Seal Final Divorce Decree will serve as your authorization to make changes to many of your documents such as your driver's license and your social security card.
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