Information About Divorce/Custody
FAX (609) 348-0229
Routinely handled are: Divorces based on extreme cruelty,
Adultery, Separation and Desertion including Annulments and other matters
related to divorces such as Alimony, Custody Disputes, Child Support,
Spousal Support, Etc.
A divorce or separation is usually one of the most emotionally draining
hardships that can befall any one person today. The general purpose of the
marriage was to find some medium of happiness in today's complex world. The
termination of the marriage status can often be a depressing and financially
difficult transition with effects lasting for the rest of one's life.
The following recommendations are answers to some general questions
regarding divorce. This brief introduction is not meant to replace the
advice of an attorney as to any one specific divorce or family matter.
The law varies from state to state as to the specifics for obtaining a
divorce. In New Jersey, there are four primary forms of divorce petitions:
extreme cruelty, separation of 18 months, desertion (12 months) and adultery.
There are a number of other minor basis for divorce including criminal
records of a spouse, prior marriage being still valid, drug addiction,
aberrant sexual behaviour, etc.
Each of these forms of divorce requires that the specific elements or
conditions be stated before the court and on the complaint.
For example, the extreme cruelty does not necessarily need be extreme
or cruel but simply that the reasons or justifications are legally
sufficient for the court to render a finding that it would not be just and
fair to permit the marriage to continue as a legally recognized status. Thus,
the parties may obtain a divorce for lack of sexual attraction or loss of
intimacy, for continued indifference, berating each other or even,
obviously, violent acts toward each other. The courts, however, must
obtain some specific reasons or incidents in order to better ascertain the
nature of the parties failure to continue the relationship.
In the case of separation, basically, the plaintiff must allege and
prove her/his spouse have been separate and apart, no intimacy, for over 18
eighteen months.
The eighteen months of separation must be consecutive. Thus, any return
to living together would mean that the husband and wife can not get divorced
until after an additional 18 months have passed. Legally, the 18 months is
deemed to be self-evident proof that the marriage is beyond repair and, thus,
there is no need to prove any other accusation (such as adultery, extreme
cruelty and the like).
With reference to DESERTION, the complaining party must allege that the
other spouse left (deserted) the marital household against his or her will.
It must be demonstrated that the party bringing the action in court did not
want the other spouse to leave, at first, but that over 12 months have
transpired and the desertion continues. At this point, after 12 months, the
spouse who did not wish the desertion may allege that he/she does not want
the errant spouse to return to the marriage and that a divorce is desirable.
With reference to ADULTERY, there are some misconceptions, generally.
There is no need to actually prove, by direct evidence, that the errant
spouse did sleep with another person. There is no need to prove in court that
the errant spouse was actually intimate with another person. The Courts have
viewed indirect, but credible, evidence as a sufficient basis for adultery.
Thus, of course, if the errant spouse admits the transgression, then there
are grounds for adultery.
In addition, if the adulterous spouse is shown to have disappeared for a
significant period of time under suspicious circumstances not otherwise
holding up to a reasonable explanation, such as being seen in a hotel with a
person of the other sex when he/she was to have been at a conference or at
work, then this would usually be sufficiently credible evidence for a divorce
based on adultery.
It is noteworthy that in New Jersey, and some states, a battered spouse
who can prove that his/her physical injuries or trauma are a result of
marital relationship may be entitled to receive civil damages for such
injuries. A personal injury, or Tevis, lawsuit is an entirely different
complaint. The injured party shoulc obtain a credible medical report to
substantiate the damages.
What is an Annulment?
In general, an annulment is a nullification of the marital status due to
reasons invalidating the marriage contract ab initio. An annulment is granted
where, for example:
The law requires that the due process rights of the spouse who can not
be located be protected. This protection consists of receiving notification
of the complaint being filed. If the disappeared spouse is not locatable,
then notice may be obtained by way of a motion for substituted service. This
is a somewhat cumbersome method of notification by an alternative method and
can consist of notice by way of an advertisement in the press or be regular
mail being recognized, by the court's, as sufficient service.
With reference to children, all the States of the United States have
enacted statutes to protect the best interests of the children in a divorce
situation. The children are regarded by the court's, in general, as the
victim's of the married parties and thereby get special attention. Custody
and visitation are often the real reasons for litigation and not the actual
basis for the divorce itsel.
The statutes as to each parent's rights to custody vary from State to
State. Thus, it is important to consult an attorney before considering your
options in a custody/child support decision making process.
The presumption in the State of New Jersey, for example, is for joint
custody of the parents, at least on the books and per N.J.S.A. 9:2-4 and
9:17-40. The general intent of the law is that both parents have an input
into the raising and well being of the children, unless certain other
detrimental or negative factors are taken into consideration as explained
hereunder. Parents are urged to shoulder the responsibilities of child
raising in a fair and sensible manner so as to avoid or adding to the
disruption or interference to the child's well being emotionally, physically,
spiritually and mentally. It has been proven again and again that even the
most simple or innocous divorce can leave irrepearable damage on a child's
psyche thereby creating significant development problems later in adulthood.
The Court's will enter an order for any type of custody resolution that
is deemed to be in the child's best interests. Thus, the custody could be
joint: 3 days here and 4 days there, or 5 days here and 2 days there or even
6 months here and 6 months there depending on the circumstances and school
requirements. The Court may appoint a guardian ad litem or attorney to
independently represent the interests of the children. Thus, any child's
whose interests are being ignored by certain selfish parents may be protected
by the court itself.
Joint custody is often misinterpreted by parents and other parties
involved in the child raising. The general purpose of joint custody is to
keep each parent involved in raising the child: decisions regarding the
child's doctor, the particular school to be attended, the type of vehicle or
clothing, babysitter, etc.
Terminology of primary custody and sole custody must be examined exactly in
order to determine its significance and variations in any one type of
custody arrangement. Each case varies.
In the event that both parents unfortunately do not get along or can
not communicate, then sole custody can be given to one party with liberal, or
limited, visitation to the other (the non-custodial parent). Visitation can
be structured according to the particular interests and needs of the child,
not the parents. If both parents are not fit or are otherwise not capable to
have custody of the child, such as where both parents are minors, durg
addicts, incarcerated and the like, then custody could ultimately be given to
a third party (a step parent, foster home or other carefully considered
alternative).
If the court deems it necessary for the children's emotional well being,
even third parties can obtain custody or visitation rights. Such is the case
with grandparents, siblings and others. These parties may apply to the Courts
for such visitation rights and prove that there is an emotional need. The
third party must prove that it would be in the best interests of the child.
In resolving a custody dispute as to who gets the children, the court's
view many factors including, but not limited, to the following: type of
lodging available, education of the parent, school system, whether the parent
has time for the child, whether the parent has any intention of relocating,
child's neighborhood, income of the parent, the extended family, the child's
own predisposition and desires, etc..
The older a child is, the more his/her desires are given weight and
consideration. In addition, if the parent has a criminal record, a isability,
moral depravity, substance abuse or any other negative mark on his/her
character then it may be a basis for considering not granting or limiting
custody or visitation.
Each case is different and the court's consider a host of variables. The
entire custody or visitation process can, in some cases, take over a year to
resolve.
The court may, in most states, in addition to alimony and child support,
make an award to distribute the properties of the party which was legally
acquired by both during the marriage, as per New Jersey Statutes Annotated
2A:34-23, et. seq. Nearly every state has some form of law addressing the
issues of equitable distribution of marital property.
In providing some form of definition as to what is equitable
distribution, Justice Pashman stated succintly in Kikkert v. Kikkert,
88 N.J. 4 (1981):
- one spouse was already married, not divorced, at
the time of the second marriage,
- where the one spouse was not aware that he was
actually getting married (due to intoxication, drugs)
- where one spouse was being married against his or her
will (entrapment, threats, duress)
- where the other spouse shortly after the marriage,
within days or weeks usually, disappears and can not
be located and there is no consummation of the marriage.
- where the errant spouse fails to disclose a material
and significant or profound fact to the other spouse:
religion, criminal record, homosexuality, desire to
not have children, etc.
If a spouse can not located the husband/wife, can a divorce
still be granted?
Courts and the Child's Best Interest.
A Divorce is a painful experience to the adults. A divorce in its
simplest terms means that the two adults are not capable of resolving their
differences even after perhaps having tried obtaining counsel. The
recommended solution to avoiding much of the pain after the actual divorce
begins is for the parties to work out an agreement or an understanding
instead of litigating the matter further and thereby aggravating any hope of
working out a peaceful agreement. Otherwise, attorney's fees, expert fees,
appraisal fees, psychologists fees and costs can become exorbitant.
WHAT IS EQUITABLE DISTRIBUTION?
"The purposes of equitable distribution differ from
those of alimony and child support. Alimony and
child support can help maintain the income of both
parties at a certain level over time by using one
party's income to support the other. However, the
primary purpose of marital property distribution
laws is not to compensate for changes in the
parties' fortunes after they have separated, but
to achieve a fair distribution of what the parties
lawfully and beneficially acquired while they were
together."
In deciding the fairness of applying principles of equitable
distribution to marital property, the court's will often look at the
following factors, in addition to others:
a. The economic status of the parties at the
time that the properties to be divided.
b. The length or duration of the marriage.
c. The income or property that each party
brought into the marriage.
d. The standard of living experienced by
the parties during the marriage.
e. The mental, emotional and physical
condition of each spouse.
f. Any prenuptual agreements.
g. The help or assistance that either spouse
provided the other during the marriage as
to education, support, etc.
h. The present worth of the items and property.
i. The tax consequences.
j. The particular needs of the spouse who will
or has custodial care of any children with
reference to the residence.
k. the debts and liabilities of each spouse.
l. the earning capacity of each party: education,
experience, age, absence from job market,
education necessary to train, etc.
These factors are similar to those the court considers with reference to
issues involving child support matters. Equitable distribution takes into
account a business or partnership type of status to the marital status and
takes into consideration that recognizes, for example, that the wife
participated in developing the marital assets, in a broad sense, by helping
the husband amass property, supporting the household and concomitant needs,
taking care of the children and foregoing lost opportunities of developing
her own career or opportunities.
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