- Is there a difference between a contested and uncontested divorce complaint?
- Do we have to live apart for 18 months before we can get divorced?
- What is a common ground used in the uncontested divorce complaint?
- Should I list what my spouse did wrong in the complaint for divorce: What’s the effect?
- How long does it take to get divorced?
- How do I find out what property my spouse has (bank accounts, pensions, 401k)?
- How do I get a part of my spouse's retirement benefits?
- Do I have to go to court?
- When do I get the divorce decree?
- What kinds of questions will I be asked in court?
- Is there a way to speed up my divorce?
- What if I can't find where my spouse lives?
- If I don't live in New Jersey but my spouse does can I file for divorce in New Jersey?
- If I don't live in new jersey do i still have to come to court in new jersey?
- I want an uncontested divorce but I don’t think my spouse will sign the papers – What do I do?
- My spouse has told me that they will not accept the divorce papers – What are my options to have them served?
- Do I need to attach my marriage certificate to my divorce papers?
- I am in the country illegally because I overstayed my visa – Can I still get an uncontested or no-fault divorce in New Jersey?
- In an uncontested or no fault divorce in New Jersey, can the papers be filed electronically or online?
- How long do i have to live in New Jersey in order to file for divorce?
- What property am i entitled to?
- Should i get child support through the court or have my child's father (or mother) pay me outside of court?
- Can i get alimony?
- My spouse has a business am i entitled to money from that business?
- Can i make a friend or other family member the guardian of my children if i die?
- After the divorce can i move out of state with my child(ren)?
- What are typical custody and parenting time arrangements in a new jersey divorce?
- Can i force my spouse to take more parenting time (visitation) than they want to?
- In a new jersey uncontested or no-fault divorce, if we agree on child support can a judge change the amount that we agree to?
- If i file for an uncontested or no-fault divorce in new jersey can the judge change the terms of our agreement other than child support?
- Can my spouse waive child support in new jersey?
- My spouse is in the country illegally. will the court force me to support her even if she says that she doesn’t want support?
- I want to move after i file for an uncontested divorce in new jersey. do i have to wait until the divorce is finalized to move?
Q: Is there a difference between a contested and uncontested divorce complaint?
A: The same basic complaint for divorce can be used for a contested or uncontested divorce in all 21 counties in the State of New Jersey.
Q: Do we have to live apart for 18 months before we can get divorced?
A: One of the biggest myths in New Jersey divorce is that a couple has to live separate and apart for 18 months prior to filing for divorce. Nothing could be further from the truth. A couple can get divorced based on irreconcilable differences if they have had "irreconcilable differences" for at least 6 consecutive months prior to filing the complaint for divorce.
Q: What is a common ground used in the uncontested divorce complaint?
A: The most utilized ground for divorce in New Jersey is irreconcilable differences. Irreconcilable differences essentially means that for at least the last 6 months you and your spouse have had differences, and that in your opinion the differences cannot be reconciled – i.e., you can’t get past these differences, so you want a divorce. The actual language is that there is “no reasonable prospect of reconciliation”. You don’t have to live in separate residences to get a divorce on the grounds of irreconcilable differences. You and your spouse can live together throughout the entire divorce process. Other common, but less used grounds for divorce in New Jersey are: adultery, 18 months separation, extreme mental cruelty, and desertion.
Q: Should I list what my spouse did wrong in the complaint for divorce: What’s the effect?
A: In an uncontested divorce it makes no sense to list the marital issues and controversies in an uncontested divorce complaint. Your goal in an uncontested divorce is to get the divorce started and finished as quickly and drama-free as possible. By listing all of the marital “dirty laundry” in an uncontested case you may provoke your spouse to contest the case, and file an equally revealing Answer just to save face, and feel like they are defending their name and their honor.
Divorce Procedure in New Jersey
Q: How long does it take to get divorced?
A: There are 6 basic steps in getting an uncontested divorce they are:
- Preparation of the divorce papers
- Filing of the divorce papers
- Service of the divorce papers on your spouse
- Waiting 35 days to see if your spouse files an answer, OR Your spouse signs an affidavit waiving the 35-day answer period
- Depending on the facts of your case filing further certifications/notices with the Court and possibly serving them on your spouse
- Court date - Judgment of divorce
The time period from preparation of initial papers to judgment of divorce ranges from approximately 5-6 weeks (fastest) to 2-3 months depending on the county's scheduling, the facts of your case, and how much time it takes to resolve any open issues with your spouse.
Q: How do I find out what property my spouse has (bank accounts, pensions, 401k)?
A: If you want to know what property your spouse has so that you can figure out what part of it you are entitled to, you will probably have to spend some time in court doing what's called "discovery". Discovery is a process in which the Court orders you and your spouse to swap information about your income, assets, and other property. Since it's a court order, your spouse cannot ignore it and tell you that they're not giving you any information. If they were to do this they would be in contempt of court. You cannot get a court order for discovery without going to court.
Q: How do I get a part of my spouse's retirement benefits?
A: Funds contributed to a retirement asset during the marriage are subject to equitable distribution. The marital portion can be valued/appraised and a QDRO (Qualified Domestic Relations Order) can be put in place to protect your part of your spouse's retirement benefits.
Q: Do I have to go to court?
A: In the following counties after the paperwork is filed and the proper certifications are filed, and the court has had a chance to review the paperwork to make sure that it follows the divorce statutes, if all the paperwork is in order, in certain cases, the Court will sign the Judgment of Divorce without the necessity of a court appearance. The counties are: Atlantic, Cape May, Hudson, Mercer, Middlesex, Somerset, and Warren. (Camden in some circumstances).
Q: When do I get the divorce decree?
A: You get the divorce decree the day that you go to Court. Or if you do not have to go to Court, then your decree will arrive in the mail shortly after the Judge signs it.
Q: What kinds of questions will I be asked in court?
A: Your complaint for divorce contains facts or allegations that you believe to be true. In court myself or the Judge will review those allegations with you, and if the Judge is satisfied that the allegations are true, then your divorce will be granted.
Q: Is there a Way to Speed up my divorce?
A: Yes. If your spouse waives the 35 day period to file an answer, the process is reduced by 35 days.
Q: What if I can't find where my spouse lives?
A: This can be a problem. Unfortunately, if you can't find an address for your spouse, the divorce papers cannot be served on them, and you will not be able to show the Court that your spouse had notice of the divorce and an opportunity to come to court to assert their rights. If you can't find your spouse, there are locating services and investigators who can do a locate search for less money than you may think. Please call my office if this is your situation.
Q: If I don't live in New Jersey but my spouse does can I file for divorce in New Jersey?
A: Yes. You may.
Q: If I don't live in New Jersey do I still have to come to court in New Jersey?
A: If your spouse lives in a county where the plaintiff has to go to court (appear in person) than yes, if you are the plaintiff then you have to arrange to come to New Jersey. If your spouse lives in a county where the plaintiff does not have to appear in court than no, you do not have to arrange to come to court in New Jersey.
Q: I want an uncontested divorce but I don’t think my spouse will sign the papers – What do I do?
A: It is a myth that your spouse has to “agree” to the divorce or “give” you the divorce. Your spouse cannot block you from divorcing him or her by not signing the divorce papers. Once you give your spouse proper legal notice of the divorce filing, if they decide not to do anything, and refuse to sign the papers, you can still get a default divorce. Call my office if you find yourself in this situation.
Q: My spouse has told me that they will not accept the divorce papers – What are my options to have them served?
A: If your spouse will not accept service voluntarily then they will have to be served by a third-party, either a paid process server who will go to the door and hand them the papers, or an officer from the County Sherriff’s office, who will also pull up to your spouse’s place of residence and personally serve the papers on your spouse. The third-party process server will then prepare an Affidavit of Service to file with the Court.
If your spouse refuses to accept service from the process server or sheriff they can be “staked out”, so that the papers are served on them when they least expect them. This is an expensive process as the process server will charge hourly for the time that they spend staking out the house. There is also the possibility of “substituted service”.
Q: Do I need to attach my marriage certificate to my divorce papers?
A: Neither the plaintiff nor the defendant needs to attach their marriage certificate to their divorce papers. However, in Essex County, for instance, certain judges require that the marriage certificate be brought to court on the day of the hearing for the final divorce and entered into evidence (submitted to the Judge for review).
Q: I am in the country illegally because I overstayed my visa – Can I still get an Uncontested or no-Fault divorce in New Jersey?
A: Yes. As long as you have been a resident of the State of New Jersey for at least one year the Court has jurisdiction to hear your case and grant your divorce. You do not have to be a US citizen to get a divorce. Also, the court does not inquire into your citizenship status at any point during the divorce process, including the final hearing.
Q: In an uncontested or no fault divorce in New Jersey, can the papers be filed electronically or online?
A: At this time divorce filings in New Jersey whether contested or uncontested must be done using paper. There is no option to file electronically or through online submission.
Q: How long do I have to live in New Jersey in order to file for divorce?
A: You or your spouse has to be a resident of the State of New Jersey for at least one year prior to filing the complaint for divorce.
Case Issues in New Jersey
Q: What property am I entitled to?
A: From the day of your wedding to the date of the filing of the complaint for divorce (or depending on your circumstances, sometimes your separation date) all property acquired by either you or your spouse during that period is part of the "marital estate". For example, if you buy a car in your name, it's part of the marital estate. If you buy a house in your name, it's part of the marital estate. If you make contributions to your retirement fund, it's part of the marital estate. The property in the marital estate is subject to "equitable distribution" between the parties.
Q: Should I get child support through the court or have my child's father (or mother) pay me outside of court?
A: The benefits of having child support paid through the Court are:
- You will not be in the position where you have to hope that you get paid on time.
I've seen too many cases where the custodial parent was "nice" and did not set up child support through the State, and the non-custodial parent took advantage of the situation, and failed to pay, half-paid, or just blew off their child support obligation.
You have the security of knowing that the State is collecting the money for you.
If you do your own child support deal with the non-custodial parent you may find yourself in the position of having to act like a collection agency, constantly calling your ex saying "Where is my check? "When will I get it?" "Why is it half of what we agreed to?" Not knowing when you are going to receive child support will increase your level of stress, anxiety, and economic insecurity and instability.
The State reviews and increases the amount of the child support payment every 2 years if the cost-of-living in New Jersey increases. (See Rule 5:6B ).
If you do not set up child support payments through the State, you will not receive automatic cost of living increases. Over 5,10 or 15 years you lose significant amounts of money that the State would have automatically collected and sent to you.
You have no interaction and no opportunity to fight with the non-custodial parent over money issues.
With the State acting as your buffer your interactions with the non-custodial parent can focus on co-parenting and not fights over when the child support money is coming.
The State keeps track of arrears.
If you do not use the State you will have to keep track of arrears and then you will have to try to enforce the arrears on your own at your own cost in time, money and aggravation. It is important to understand that if you do not have an active child support probation account you cannot let non-payment or half-payments continue for months or years and then come in to court and ask for all the back child support that has accumulated. The Court can only award you child support back to the date that you file your motion with the Court. All the other child support that was due and owing to you will be unenforceable.
Q: Can I get alimony?
A: Yes, if there is a substantial difference between your income and your spouses income, and your marriage is not a "short-term marriage" (the definition of short-term marriage varies from court to court).
Q: My spouse has a business am I entitled to money from that business?
A: The marital portion of a spouse's interest in a business is subject to valuation and equitable distribution. If the business was started before the marriage then the pre-marital portion is not subject to equitable distribution, but the growth in the business from the date of marriage to the date of the complaint for divorce is subject to equitable distribution.
Q: Can I make a friend or other family member the guardian of my children if I Die?
A: Yes, you can. However, there is a New Jersey law NJSA 9:2-5, which the New Jersey courts have interpreted as saying that there is a rebuttable presumption that the non-custodial parent has a stronger right to have custody of your children if you die than anyone else, including your parents, your brothers or sisters, or your friends. However, proof of gross misconduct, abandonment, unfitness or the existence of exceptional circumstances can tip the presumption in favor of the guardian who you appoint.
Q: After the divorce can I move out of state with my child(ren)?
A: If the parties have "joint legal custody" (most parents do) then the "parent of primary residence" (PPR) cannot relocate outside of the State of New Jersey without the consent/permission of the non-custodial parent. However, in certain instances the Court will allow the custodial parent to relocate, out of state, over the objection of the non-custodial parent.
Q: What are typical custody and parenting time arrangements in a New Jersey divorce?
A: The parties are free to fashion any custody and parenting time that they agree to.
The courts will generally not interfere in a couple’s custody and parenting time decisions. So you can fashion as unique a custody and parenting time schedule as you and your spouse see fit. A typical custody arrangement is for the parties to share joint legal custody, and for one parent to be the PPR (Parent of Primary Residence) while the other parent is the PAR (Parent of Alternate Residence). The default parenting schedule for the PAR is overnights every other weekend, with one overnight during the week.
Q: Can I force my spouse to take more parenting time (visitation) than they want to?
A: No. There is no mandatory minimum amount of parenting time (visitation). If your spouse wants no parenting time then they will receive no credit for parenting time expenses against their child support obligation.
Q: In a New Jersey uncontested or no-fault divorce, if we agree on child support can a judge change the amount that we agree to?
A: Yes. A Judge has the power and the duty to review your child support to make sure that it is line with the New Jersey child support worksheet guidelines. If there a valid reason why the child support should be different from the guidelines calculation then the reason can be presented to the Judge, and she or he may approve it.
Q: If I file for an uncontested or no-fault divorce in New Jersey can the judge change the terms of our agreement other than child support?
A: The Superior Court, Family Part is a court of equity. The Judge hearing your case has the power to do what is equitable in your case. However, in an uncontested case the Judge will not intercede to overrule or amend the parties will as expressed in a signed Property Settlement Agreement. If you have a signed Property Settlement Agreement the court will ask questions to see: whether you and your spouse signed the paperwork without being forced to sign; whether you and your spouse understand the terms of the agreement; and whether you and your spouse understand that the Agreement will become part of your divorce Judgment and will bind you in the future.
Q: Can my spouse waive child support in New Jersey?
A: The general rule is that your spouse cannot waive child support. However, you and your spouse can deviate from the child support guidelines worksheet child support number if there is a valid reason for doing so. You can call my office to further discuss this issue.
Q: My spouse is in the country illegally. Will the court force me to support her even if she says that she doesn’t want support?
A: Generally, no. You can call my office to discuss the specific facts of your case.
Q: I want to move after I file for an uncontested divorce in New Jersey. Do I have to wait until the divorce is finalized to move?
A: No, you can move once you file the complaint for divorce. However, depending on the Judge and the county you may have to come to court on the day of the final hearing.