Guidance for Divorce and Spousal Support from an Experienced Team
Compassionate legal advice during a challenging time
You should not face your divorce alone. At Price, Meese, Shulman & D’Arminio, P.C., we provide compassionate counsel while protecting your rights and promoting your interests. With our knowledge, experience and resources in family law and divorce situations, we’re passionate about our work — and compassionate about your situation. Whether in the courtroom or in mediation, our goal is achieving the best results for you.
The basics of a divorce in New Jersey
New Jersey, like most other states, permits two kinds of divorce — fault-based divorce and no-fault divorce. Generally, no-fault divorce is less upsetting to all the parties involved, especially children. Most NJ no-fault divorces are based on the theory of irreconcilable differences that have driven a couple apart and that have continued for at least six months. Nearly all divorces in NJ today are no-fault, with fault-based divorces having become exceedingly rare. If you are going through a divorce — or considering one – our family law practice will protect your interests from start to finish. Whether we pursue alternative dispute resolution or litigate in the courtroom, we seek the best outcome we can achieve for you.
Managing a wide range of family and divorce issues
Our team can help with an array of issues, including:
- Modifications to alimony and child support: Following the order of judgment in a divorce, changing circumstances may require alterations to child support and alimony.
- Mediation and collaborative law: We provide a range of alternative dispute resolution services, such as mediation and collaborative law, in addition to litigation.
- Child support: Our firm assists in all child support and calculation issues, including determining the amount of child support due and modifications.
- Distribution of assets: New Jersey is an equitable distribution state, meaning that the marital assets of the divorcing couple are divided fairly and justly, rather than just being split down the middle.
Attorneys Protecting Your Assets in New Jersey Divorce
New Jersey law mandates an equitable distribution of all marital assets and debts when a couple divorces. This “equitable distribution” does not mean that each spouse or partner equally splits marital assets — instead this means that the court, if there’s no other agreement, will split the assets based on what is “fair and reasonable” in your particular case. We have helped clients throughout the state establish marital versus separate property and debts, develop property settlement agreements, and conduct litigation or mediation regarding property distribution issues.
What is marital property and what isn’t?
Only marital property is subject to equitable distribution, so the first step in the process is determining which assets are marital and which are not. Generally, all assets and debts acquired during the marriage are marital. The following, however, are nonmarital and thus are not subject to equitable distribution:
- Premarital property — Property owned by one of the spouses before the marriage generally is nonmarital property, unless the premarital property was comingled with marital property. Similarly, if marital assets are used to maintain a premarital asset, the premarital property can become marital property. Typical examples are depositing premarital money in a joint savings account or paying the mortgage of a home owned by one spouse with their shared funds.
- Gifts — Gifts from one spouse to the other during the marriage are marital assets. However, gifts from a third party to either spouse are generally not marital assets. The spouse who is claiming that the property is a nonmarital asset has the burden of proof.
- Inheritances — Property inherited by one of the spouses is nonmarital property.
- Personal injury awards — The portion of a personal injury award that compensates for physical or emotional pain is generally not subject to equitable distribution. Other parts of the award, however, may be considered marital property.
What happens after the marital property is identified?
Absent an agreement to the contrary made by the spouses, a judge will determine property and distribution of assets. The judge will consider certain factors in distributing property and assets:
- Each spouse’s contribution to the marital estate
- The length of the marriage
- The value of each spouse’s separate property
- The relative financial positions of the parties after divorce
- Each spouse’s financial needs
- Whether either spouse wasted marital assets
- Prenuptial and postnuptial agreements
- Alimony
- Child custody
- Tax consequences
New Jersey’s equitable distribution process may affect other financial awards because the courts do not allow “double dipping.” That is, if a share of an asset — such as a pension — is awarded to a spouse through equitable distribution, that same asset cannot be given again to the spouse as part of an alimony award.
Fairness for the Future — Guidance for Alimony and Spousal Support Questions in New Jersey
In New Jersey, alimony — also called spousal support or maintenance in other states — is not an automatic part of every divorce. Alimony is used to “look forward” and balance out inequalities between the spouses as a result of differing economic circumstances, such as when one parent gives up a good job to raise the couple’s children. We protect the interests of those who are likely to be required to pay alimony, as well as those who expect to receive it.
Types of alimony in New Jersey
New Jersey law identifies five kinds of alimony: temporary, limited duration, open durational, rehabilitative and reimbursement.
- Temporary alimony. Temporary alimony (or alimony pendente lite) is awarded to unemployed or low-earning spouses to cover living expenses during the divorce or civil dissolution proceedings. Importantly, it’s designed to maintain the status quo between the parties.
- Limited duration alimony. Limited duration alimony is awarded based on financial need and lasts as long as it should reasonably take the dependent spouse to become self-supporting.
- Open durational alimony. It is appropriate after a long marriage, or when the dependent spouse gave up professional or educational opportunities to care for the family or to further the other spouse’s education or career.
- Rehabilitative alimony. Rehabilitative alimony covers the training or education that the dependent spouse needs to become self-supporting. A spouse seeking rehabilitative alimony must inform the court of the nature of the education or training, the time frame and whether he or she can work during the rehabilitation period.
- Reimbursement alimony. Reimbursement alimony compensates a spouse who supported the other spouse through advanced education. It is based on the premise that the spouse rightly expected to enjoy the fruits of his or her sacrifice but is now unable to because of the divorce.
Fourteen factors considered in NJ spousal alimony awards
New Jersey does not have calculation guidelines for alimony as it does for child support. Instead, the divorce judge determines the amount and duration of alimony based on a number of factors:
- 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 during the marriage and the likelihood that each party can maintain a reasonable comparable standard of living, with neither party having a greater entitlement to that standard of living than the other
- The parties’ earning capability, education and employability
- The length of the absence from the job market
- Parental responsibilities for the children
- The time and expense needed to acquire education or training to enable a dependent spouse to obtain appropriate employment
- The financial and nonfinancial contributions of each spouse to the marriage, including contributions to the care and education of the children and interruption of personal careers or educational opportunities
- Equitable distribution
- Income available to either party through investment of any assets held by that party
- 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
- The nature, amount, and length of pendente lite support paid, if any
- Any other factors which the court may deem relevant
Keep in mind, however, that a prenuptial agreement may modify your rights to alimony.
Preventing Conflict and Resolving Issues — Marital Agreements in NJ
Prenuptial and postnuptial agreements can reduce hostility and friction
Marital contracts — prenuptial and postnuptial agreements — have found their way into greater numbers of marriages and civil unions. These documents may seem unpleasant, as no one wants to contemplate divorce or dissolution before the wedding or during the marriage. However, marital agreements serve a need in providing specific solutions for spouses that reflect their individual circumstances.
At Price, Meese, Shulman & D’Arminio, we prepare prenups and postnups so that couples may determine the rights and obligations — including alimony and equitable distribution — that each spouse will have to the other in the event of a divorce or dissolution.
The basics of prenuptial and postnuptial agreements
In New Jersey, couples who wish to create a prenuptial agreement — also called an antenuptial agreement — must create a document that is fair and just to each spouse. Fairness, in this case, means that each spouse must:
- Provide full disclosure regarding his or her financial conditions
- Voluntarily enter into the agreement, not under fraud, force or duress
- Have sufficient time to consider their actions
- Either speak with an attorney or waive, in writing, the opportunity to consult with legal counsel
Depending on when your premarital agreement was executed, the court will determine how to evaluate it. Prenuptial agreements entered into before June 27, 2013 are evaluated with respect to the parties’ positions at the time of enforcement — but those executed or modified on June 28, 2013 or later are reviewed as of the date the agreement was signed. Our attorneys can help you in understanding what these changes to prenuptial enforcement mean for you and your situation.
What issues can be addressed in a prenuptial agreement?
New Jersey, like many of its sister states, has adopted the Uniform Premarital Agreement Act (“UPAA”). In New Jersey, the UPAA applies to all marriages as well as civil unions. Under the New Jersey version of the UPAA, the issues that can be addressed by a prenuptial agreement include:
- The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located
- The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property
- The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event
- The modification or elimination of alimony or support or maintenance of a spouse
- The making of a will, trust or other arrangement to carry out the provisions of the agreement
- The ownership rights in and disposition of the death benefit from a life insurance policy
- The choice of law governing the construction of the agreement
- Any other matter, including their personal rights and obligations, not in violation of public policy
What cannot be addressed in a prenuptial agreement?
Prenuptial agreements cannot restrict child support payments, determine child custody or decide visitation rights. At the time of divorce, a court decides these issues based on the best interests of the child.
What is the purpose of a postnuptial agreement?
A postnuptial — or mid-marriage — agreement is made between married partners or those in a civil union in order to protect their individual assets in the event of divorce. In New Jersey, these generally require that four conditions be met:
- There must have been a marital rift that lead to a promise to reconcile,
- The postnup must be in writing,
- The agreement must have been conscionable when made and when enforced, and
- The enforcing party must have acted in good faith.
Modification to Your New Jersey Divorce Decree
Changing your alimony orders
To modify your alimony, child support or child custody order at any point after your divorce is final, your attorney must file a motion with the court. The motion must demonstrate that there has been a material change in circumstances that warrants a modification of the order.
Modifying an alimony order in New Jersey
Alimony orders may be modified if there is a significant change in your life or your ex-spouse’s life, including:
- Loss of employment
- Serious illness or disability
- Significant increase or decrease in income
- Cohabitation
- Remarriage of the dependent spouse
- Changes in cost of living
- Business failure
- Retirement
Similar to child support, alimony awards may be enforced through wage garnishment, civil or criminal contempt or seizure of property. The Uniform Interstate Family Support Act, which has been adopted by every state, provides for interstate enforcement of alimony awards.
Dissolving Civil Unions and Same Sex Marriages in the State of New Jersey
Legal services for same-sex couples throughout the state
Although same-sex marriage is permitted in New Jersey, civil unions have been recognized since 2007. Same-sex couples face the same challenges that any couple faces — financial issues, falling out of love with each other or an inability to get along. Our family law practice is experienced in helping those who want to end their relationship through a dissolution of their civil union. We also assist in the transition from a civil union to a same-sex marriage and its benefits.
Understanding the NJ civil union law’s benefits
New Jersey law provides that couples in a civil union have “all of the same benefits, protections and responsibilities under the law … as are granted to spouses in a marriage.” Some of these rights include:
- Inheritance and probate
- Adoption
- Family leave
- Health insurance and pension benefits
- Wrongful death claims
- Advance healthcare directives
The process of dissolving a civil union
As with a “traditional” marriage, civil unions may be terminated through a no-fault or a fault-based divorce filing. This means that when a same-sex couple wishes to end their civil union, they may cite separation or several of the fault based grounds as a basis for the action. Regardless of the reason, if you are contemplating the end of your civil union, our family law practice can help guide you through the process to ensure that the law is applied equally in your situation and that you receive the best results possible.
Our Family Law Practice Assists Clients with Palimony Issues
Roommates and cohabitating couples need to know the rules
New Jersey eliminated common law marriage — a de jure marriage between two people on the basis that they were acting in all respects as husband and wife — in 1939. Prior to that date, a man and woman living together might very well be considered married in the eyes of the state. Following the elimination of common law marriage, however, the concept of “palimony” arose among unmarried couples. We have the knowledge and experience to guide you through the changes in New Jersey’s palimony laws.
What cohabitation arrangements does New Jersey recognize?
If you and your partner do not wish to marry — but you want to have a binding agreement that covers your cohabitation and palimony — you must have a valid written agreement establishing the right to palimony. Although from 1939 until 2010 this contract could have been oral, it now must be in a writing executed by both parties. New Jersey recognizes both same-sex and opposite-sex cohabitation arrangements, providing the benefits of the palimony laws to all couples, regardless of sexual orientation.
What is the benefit of a cohabitation agreement?
A cohabitation agreement typically includes provisions about palimony and the distribution of mutually owned assets, including real property. When determining whether to enforce such a contract, New Jersey courts look at:
- Length of cohabitation
- Whether cohabitation has been continuous
- Purpose of the relationship
- Degree to which the couple’s lives are intertwined
- Intent of the parties
We assist with ensuring that you and your significant other obtain an enforceable cohabitation agreement and palimony decision by including numerous provisions to address clarity and reduce confusion:
- Personal identification information
- Statement of purpose
- Duration of the contract
- Inventory of separate property
- Inventory of shared property
- A last will and testament for each party
- Palimony, if any
- A healthcare power of attorney for each party
- Procedure for dividing the property in the event of death or dissolution
- Procedure for revising the agreement
- Financial arrangements, including how shared expenses will be handled
