Sussex County Family Law Attorneys
Questions abound as a relationship moves toward marriage dissolution. Whether the marriage deteriorates slowly and unevenly over a long period of time or whether it ends suddenly and unexpectedly due to an unforeseen trauma, both parties wonder what will happen next. Generally, the longer the marriage lasts, the more difficult these questions become.
Later, once the case goes to court, there are more questions to resolve, specifically about important issues like property division and child custody. In both of these situations, you have important legal and financial rights, but without an experienced and skillful advocate on your side, your rights may be overlooked in favor of some vague greater good.
Since the experienced lawyers at Hollander, Strelzik, Pasculli, Hinkes, Wojcik, Gacquin, Vandenberg & Hontz, L.L.C. are both attorneys and counsellors at law, we serve as both tireless advocates and effective problem-solvers. Moreover, because of our experience in family law, we are familiar with the legal, emotional, financial, and other issues that face divorcing families in Northern New Jersey. So, we are well-positioned to guide you through this time and serve as a strong voice for you all along the way.
A substantial minority of Americans — one third as of 2016 — still view divorce as morally unacceptable. If you are one of these individuals and your marriage is ending, the court may need to set up provisions for spousal support, child custody, and other issues. In these situations, legal separation may be an option.
This procedure might also be a good alternative in some other cases because divorce automatically terminates inheritance rights and eligibility to enroll in a spouse’s employer-sponsored health plan.
A limited divorce, which is much like legal separation in some other states, allows the spouses to make some ground rules that enable them to live apart while keeping the marriage itself intact. One of the other advantages of a “divorce from bed and board” is that it gives the spouses time to think about the future and consider if they really do want a divorce.
There are also some significant drawbacks to these agreements. For example, if a devious spouse anticipates a divorce, that person has ample opportunity to conceal assets and make them difficult to locate later on.
We always take the time to meet with our new family law clients for as long as it takes to thoroughly go over all their legal rights and responsibilities because informed decisions are always the best decisions.
For several decades, most marriage dissolutions in the Garden State have been based on the no-fault provision in N.J.S.A. 2A:34-2. In the United States, no-fault divorce first gained traction in the 1970s, largely because it eliminated the need for spouses to make their specific grievances about one another a matter of public record. Moreover, no-fault shifts the focus of the proceedings away from the spouses and onto the children, at least to some extent.
In New Jersey, no-fault divorce may be based on :
- Physical separation that has lasted at least 18 months, or
- “Irreconcilable differences” which began at least six months before the petition was filed.
Separation-based divorces are a little easier to establish than problem-based divorces, simply because the first category is objective (the couple was either separated for a year and a half or they were not) while the second is rather subjective. However, in either case, the testimony of one spouse is almost always sufficient.
While some states are pure no-fault states that no longer permit evidence-based divorce, such actions are still possible in the Garden State. In most cases, there is no six or 18-month waiting period, which can be advantageous in some circumstances, particularly some domestic violence situations. Furthermore, largely for moral or religious reasons, some spouses want or need an official determination that the other party was at fault for ending the marriage. Finally, although fault in the breakup of the marriage cannot technically justify an uneven property distribution, there may be a back door.
The most common evidence-based grounds are:
- Desertion: One spouse must affirmatively abandon the marriage and remain away for at least 12 months. Desertion is different from separation in that the former implies a complete break of all ties, while the latter does not.
- Substance Abuse: The conduct must be ongoing for at least 12 months and be so bad that it erodes the foundations of the marriage. This level of substance abuse usually involves at least one stint in rehabilitation.
- Cruelty: Somewhat similarly, there are “irreconcilable differences” when the couple has a hard time living together, and there is “cruelty” when it is physically or emotionally dangerous for the couple to live together.
- Adultery: Flirtatious behavior or excessive use of pornography may qualify as infidelity to some on moral grounds, but these kinds of behaviors do not constitute adultery in New Jersey family law.
Some common law defenses may be available, including condonation. In this instances, if one spouse forgives the other spouse for any of the aforementioned marital sins and agrees to resume the marital relationship, that spouse may later be unable to claim that behavior as a basis for divorce.
Filing and Serving the Petition
Notice and opportunity to present a defense are two essential elements in any civil proceeding. Divorce notice provisions will be covered in this section, and subsequent sections will examine the actual divorce process.
Although some other personal service methods may be available, either sheriff or private processor service is usually the best alternative. These individuals usually have no motive whatsoever to give false testimony, thus short-circuiting almost any argument that the service papers were altered in any way. Personal service may be carried out at the respondent’s home, place of employment, or anywhere else the person may be located.
In a few uncontested cases, the respondent may agree to the terms of the divorce as outlined by the petitioner and waive service of citation. Moreover, if the respondent has an attorney of record and the lawyer agrees, the petitioner can serve the attorney.
Depending on the jurisdiction, after two or three unsuccessful attempts, most judges will authorize substitute service. After the petitioner files a due diligence affidavit detailing the attempts made to serve and/or locate the respondent, the judge may authorize service by an alternate means, which could be leaving the summons at the residence with someone who is not the respondent, publishing an ad in a local legal newspaper, or perhaps even posting a summons on the courthouse door.
In any case, if the respondent fails to respond within the time allotted by law, which is usually about 30 days, the petitioner may proceed with a default divorce.
The Temporary Hearing
The old saying that “possession is nine-tenths of the law” is usually applicable in New Jersey family law cases, especially with regard to child custody and visitation matters. If the system in place at the time that the judge hears the case is working substantially well, even if there are some problems, such a system almost always stays in place. As a result, the temporary hearing, which usually occurs about two weeks after the petition is filed, is extremely important. Child custody matters depend on the best interests of the children.
At these hearings, the judge will also issue preliminary orders concerning property division and related matters. Typically, the orders include not a property division but a property freeze. For example, Wife may have the use of the motor vehicle she normally uses as well as possession of the house, and the orders will prohibit Husband from interfering with her use and enjoyment of the property she is awarded.
Temporary alimony may be appropriate, as well, especially if one spouse lacks the financial resources to pay unexpected divorce-related expenses, such as attorneys’ fees or utility deposits.
While these orders are not set in stone, they are difficult to modify because a judge who issued an order in January will obviously not be inclined to undo it a couple of months later absent some compelling new evidence that was unavailable at the time. Such evidence often comes to light during discovery, which is the next phase in a divorce case.
Whether conducted according to formal, court-filed motions or informally by agreement, financial and nonfinancial discovery is an important component in marriage dissolution proceedings.
Financial discovery usually consists of requests for production, interrogatories, and other forms of written discovery, as well as depositions, property inspections, and other forms of unwritten discovery. As mentioned earlier, this exercise is especially critical if one spouse suspects that the other spouse is attempting to conceal assets.
Experienced family law attorneys use proven methods during discovery to get a clear financial picture.
If child custody is an issue, discovery touches this area as well. In most cases, this inquiry includes a social services investigation. A licensed social worker, usually one who is affiliated with the county, interviews key witnesses and parties, reviews documents, such as school progress reports, and otherwise determines the best interest of the children in terms of custody and visitation. Most judges defer to the social worker’s conclusions.
Most contested cases also feature divorce mediation. Despite any misgivings the parties have about the process, trained family law mediators can usually at least significantly narrow the issues to be litigated, and in many cases, the parties come to a complete agreement.
To facilitate settlement, many mediators stress the following three areas:
- Cost: By the time the case moves to mediation, both parties have usually expended significant sums in legal fees, and that expense, along with the prospect of a costly trial, motivates many out-of-court settlements.
- Civility: Divorce trials often feature emotional public showdowns, while most mediations take place in private in an atmosphere largely devoid of any emotion. Especially if the parties must co-parent after the divorce, such civility is often important.
- Control: There is some evidence that if the parties have more control over the outcome through a mediated settlement, voluntary compliance increases. Furthermore, the parties may be empowered to talk out problems between themselves. Mediation normally lasts a full day, and the parties usually divide the cost proportionally.
All divorce cases end with a trial, but in most situations, rather than the emotional showdown mentioned above, the trial consists of presenting the parties’ agreement to the judge. Whether or not the judge dictates the provisions after hearing the evidence, most divorce orders consist of:
- Child Custody: Although joint custody has fallen out of favor at least to some extent, it is still the rule in New Jersey. The term really refers to legal custody (who makes decisions about the children) as opposed to physical custody (where the children live) because in most cases, children “live” with one parent and visit the other parent every other weekend, every other holiday, and most of the summer.
- Child Visitation: Judges almost never cut off contact between parents and children, but they will restrict visitation when appropriate, perhaps by ordering supervised visitation or requiring the exchange to take place at a neutral location.
- Alimony: Recently, New Jersey lawmakers substantially reworked the state’s spousal support provisions, so it is now difficult to obtain long-term alimony absent extraordinary circumstances.
- Property Division: Judges in New Jersey must divide marital property equitably, which may not be the same thing as equally.
If circumstances change later, and these changes were unforeseen at the time the orders were entered, modification may be possible.
Connect With Experienced Attorneys
Divorce in New Jersey has wide-ranging legal and emotional components. For a free consultation with an experienced family law attorney in Sussex County, contact Hollander, Strelzik, Pasculli, Hinkes, Wojcik, Gacquin, Vandenberg & Hontz, L.L.C. After hours appointments are available.
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