Are you gearing up for a divorce? If so, you most likely have several questions about what to expect. Our Hackensack, New Jersey divorce lawyer has created the Divorce FAQ to hopefully address some of those questions. Read on and contact HD Family Law today to learn more about divorce in NY & NJ and how our legal team can help.
Divorce FAQ | Table of Contents
- How long does a divorce take?
- How much will my divorce cost?
- How is property divided in a divorce?
- Is spousal support always ordered?
- How do I get sole custody?
- Will I get child support?
- Can I keep my husband’s last name after I get divorced?
- Can I date during my divorce, and will having an affair impact the outcome of my divorce?
How long does a divorce take?
Every client I initially meet with inquires how long their divorce will take from the beginning, the filing of the initial divorce documents, until the end, when they receive their signed copy of the Divorce Judgment. In each instance, I explain there is absolutely no way to predict the length of the divorce process whether the divorce is a peaceful uncontested divorce or a bitter and ugly contested divorce. This is because there are many factors that go into the length of the divorce process.
First, it depends on the outstanding issues of the case. If there are children, do the spouses agree on custody and visitation, or do they need an evaluator to assist them and the court in making such decisions. If there is marital property, such as a home, cars, and certain assets, can the parties agree on their disposition or do appraisers and other experts need to be retained to assist in such decisions? Do the parties simply need their attorneys to negotiate the terms of the disposition of such assets? If so, there is no way to predict the length of time expert evaluations will take and how long such negotiations can go on. The length of time a divorce can take is largely dependent on the willingness of each client to compromise and their efforts to work towards a resolution. However, the length of each divorce also depends on the amount of time it takes the parties time to complete the Court’s to-do list prior to being able to obtain a final judgment of divorce.
The court may require certain evaluations and each divorce with outstanding financial issues requires discovery, which is the exchange of certain documents. While the Court imposes deadlines and due dates, often the parties and attorneys need more time and those dates are extended. Courts often do whatever is in their power to assist the spouses in settling their issues without a trial. The tools they provide the parties often take time, as the courts are overburdened with cases and the judge is often limited in time and resources. Even if there are no children and no property, the length of an uncontested divorce can also be unpredictable if one party does not wish to cooperate, or if they have left and obtaining service of papers upon them is difficult.
Divorces are rarely as simple as a client believes them to be. I have had divorces that I thought would be done within months but took years to complete due to unforeseen obstacles and I have had divorces that I thought would take years but which settled in a matter of months. Over the last fifteen years of experience solely in family and divorce law in New York and New Jersey, I have become pretty good at predicting the complexity and length of the divorce. As a result, during the initial consultation, I may give my client an idea of whether I believe the divorce process will be extremely complicated and take longer to complete, or if I believe the process will be relatively easy and completed rather quickly. However, I am always quick to note that despite my initial belief, I cannot predict the length of time it will take from beginning to end.
How much will my divorce cost?
In law school one of the first things all aspiring attorneys learn is that every yes-or-no question is answered with, “it depends.” The same goes for one of the most common questions I get as a Divorce and Family Law attorney, “How much will my divorce cost?” Just as I cannot predict the length of time a divorce will take from beginning to end, I can in no way predict the amount a divorce will cost. This applies to any family law issue, whether custody and parenting time, support, prenuptial agreement, or divorce. I charge an upfront retainer amount and an hourly rate for each case. The amount the divorce will cost depends on the number of hours I work on my client’s behalf to ensure they are protected and properly represented.
What is my role as a divorce and family law attorney? I apply the law to the facts of each case. I also apply my knowledge of how each judge operates to the facts of each case. Based on my experience and legal knowledge I give each client my best advice, lay out all of their options, and discuss the pros and cons of each option with them. The ultimate decision is up to the client. The client is the boss, and the client determines what I do on their behalf. I tell each client the ultimate cost of the divorce will depend on their choices, their willingness to compromise, and their wishes and goals. Cost can also largely depend on the difficulty of the other spouse and their attorney. Some attorneys are more litigious than others, while others will push their client into a settlement at any cost in order to avoid trial.
I like to think that while I believe a settlement is the best option in order to save time, money, and reduce stress, I always provide my client with my honest opinion on whether or not they should settle on certain issues or take the issue to trial. At the end of the day though, the ultimate decision is up to the client. Therefore, the amount each divorce costs is up to the client and the decisions they make, which will determine the amount of work required of me on their behalf.
How is property divided in a divorce?
Both New York and New Jersey are equitable distribution states (in contrast to community property states), meaning, all property is divided pursuant to each state’s standards of equity, or in other words fairness, rather than simply 50/50.
First, the Court will determine which property is marital property, purchased and/or acquired during the marriage, and which property is separate property, purchased prior to the marriage or acquired by inheritance, or certain other means. They will determine if separate property remained separate or was commingled with marital property and as such should be considered marital for purposes of equitable distribution.
Once the Court and/or spouses have identified all marital property, they will determine the value of certain property and either decide between themselves how to divide the property or if they are unable to do so have the Court decide. If the Court is required to decide, each state has certain factors the Court considers when deciding how to equitably divide property. These factors are relatively similar in both New York and New Jersey. Some of the factors that may be considered are as follows:
- Length of the marriage
- The health of the spouses (physical and emotional)
- Income of each spouse
- Property of each spouse
- When the property was purchased (if prior to the marriage is it separate, if during is it marital?)
- The standard of living of the couple during the marriage
- Contributions of each spouse to purchase the property
- Value of all of the property
Also, because the court applies the factors to each case, the Court has a large amount of discretion when making such decisions. However, the Court cannot possibly know the exact circumstances of each case, the contributions of each party, their lives, means, and the full extent of the couple’s life together. Each divorce is largely determined by each spouse’s story of the marriage, and even if documents shed light on each issue, only the spouses can possibly know the true reality of their standard of living and property entitlements. The Court is also bound by certain standards, rules, and laws and is not able to be as creative as the spouses themselves. Thereby, a settlement is always preferable because the spouses have more freedom to come up with creative dispositions of the property when fashioning a settlement agreement than the Court has when making their final distribution.
Is spousal support always ordered in divorces?
There is never any guarantee of spousal support. In fact, one of the biggest misconceptions the non-working spouse may have is that once before the Court they will automatically receive temporary spousal support while the case proceeds. The spouse requiring support is more likely to get temporary support in New York State than in New Jersey, considering New York’s relatively new maintenance laws. However, it is never guaranteed and should never be expected in either state.
In New Jersey, spousal support is referred to as Alimony. New Jersey does not have a formula for determining the amount of alimony or the duration of alimony. The Court goes by statutory factors, such as the standard of living, each spouse’s ability to earn a living, each spouse’s level of education, their investments, their property ownership, health, etc. However, it is largely up to the attorneys to negotiate an amount based on the history of each spouse’s career, needs, earnings, and ownership.
In New York, there are formulas for deciding spousal support, referred to as Maintenance. The courts are bound by such formulas, but also have the discretion to make adjustments based on their judgment and fairness.
How do I get sole custody?
I often get asked about who will get custody of the children. However, most individuals do not understand what is meant by “custody”.
In both New York and New Jersey, the courts will discuss Legal Custody and Physical Custody. What are the differences? Legal Custody refers to decision-making. This is not to say that the parents will have to call each other if the child needs a haircut. Decision-making only applies to the most significant decisions in the spheres of religion, education, medical and extra-curricular activities. Physical custody refers to where the child primarily resides.
There are two types of Custody arrangements – Joint Custody and Sole Custody. Joint Custody is when both parents must make those significant decisions together. If they cannot agree on those major decisions then they must seek the assistance of the Court. Sole Custody is when one parent may make the major decisions on their own. Oftentimes, if one parent has sole custody or sole decision making, they will have to consult with the other parent but will ultimately be able to make the final decision. This gives the non-custodial parent time to seek Court intervention if they feel necessary.
The standard the Court uses to decide custody is “Best Interest of the Child”. Many factors go into deciding what is in the Best Interest of the Child such as the age of the child, preference of the child, each parent’s living arrangements, level of education, physical and mental health, etc.
In New York, the rule is that one parent will get sole custody unless both parents agree to joint custody. The opposite is true in New Jersey where the Court will grant joint custody unless they find that it is absolutely in the child’s best interest for one parent to get sole custody.
Notice that when discussing custody, I never once mentioned visitation, which is now referred to as parenting time. Custody refers to which parent has decision-making authority and which parent does the child primarily live with, while parenting time is how much time each parent will spend with the child. There is no law that dictates parenting time in either state. In fact, parenting time is largely up to the parents. If the parents cannot agree on a schedule then the Court will assist them in making the proper schedule. Many people believe there are standards, such as every other weekend. However, this is no longer true.
In New Jersey, there is more of a push for 50/50 parenting time/custody, where the child spends 50% of their time living with one parent and 50% living with the other parent. Whereas in New York the Court avoids 50/50 time as being less stable than when one parent has the child during the week and the other on weekends. However, the parents can make an agreement with regard to the schedule as they see fit. The Court will only disregard their agreement if they determine it is not in the best interest of the child, which rarely occurs.
Will I get child support?
This depends on which state you are in, who is the primary physical custodian, and in New Jersey, how much time each parent spends with the child.
Both states have a child support formula. The formula is largely dependent on the income of both spouses. Each state gives the court discretion in adjusting the amount based on the exceptional needs of the child or the custodial parent. Let’s discuss where the states differ in deciding child support.
In New York, regardless of the parenting time schedule, the lesser monied spouse will receive child support based. The amount will be determined by the child support formula. It will be determined based on the income of both spouses, and the number of children they have.
In New Jersey, the amount of child support is largely dependent on how many nights each parent spends with the child. Depending on how many nights they each spend with the child the attorneys will determine guidelines support based upon either the sole parenting worksheet or shared parenting worksheet. If the parents decide on 50/50 parenting time then typically no child support will be awarded unless the parents decide otherwise or exceptional circumstances exist.
Of course, child support does not include childcare, health insurance, medical expenses, etc. Child support goes directly to the parent who is awarded such support and it is up to that parent how such funds are allocated.
In New York, child support is awarded until the child is 21 or emancipated, and can be extended if the child is in College until 23. In New Jersey, child support runs until the child is 19 years old or emancipated. If the child is in college or post-secondary school, or if the parent requires further support, they must let the Court know at least 45 days prior to the child’s 19th birthday. If they require it they can be awarded child support until the child is 23. Following the child’s 23rd birthday, the parent can apply for financial assistance (not to be confused with child support) for the support of their child.
New Jersey is one of the minority states that require parents to pay for their child’s college education. Of course, the amount they are required to pay will depend on the tuition and their ability to pay for the same.
Can I keep my husband’s last name after I get divorced?
Many women want to keep their husband’s last name following the divorce in order to maintain the same last name as their children. While you are always able to retain your last name, as no one will ever make you change it, we still recommend that you reserve the right in your divorce judgment to change it back to your maiden name.
In order to change your name back to your maiden name, you must have permission to do so in your final divorce judgment. If you do not reserve the right to change your name and for whatever reason, you decide you wish to do so later you will have to come back to court, spending more money and wasting more time to do so.
Can I date during my divorce, and will having an affair impact the outcome of my divorce?
Both New York and New Jersey are no-fault states. This means that fault will not be taken into consideration when making the most important decisions of your divorce. That being said, in both states, you can still list grounds such as adultery, cruelty, and abandonment if you choose to do so. Strategically, it might make somewhat of a difference to the Court or they could choose to disregard it. Typically, adultery will not make a difference to the ultimate outcome of your divorce, however, it can affect other areas of the divorce.
If you have spent a large amount of money on your boyfriend or girlfriend, having showered them with very expensive gifts, spent money on vacations and hotel rooms, or many expensive fancy dinners these expenses can be seen as marital waste. Keep in mind that any money you make during the marriage is marital funds. Therefore, any money you spend on a boyfriend or girlfriend during the marriage is marital funds. The Court can make you repay some or the entire portion to your spouse.
Also, the Court will be forced to make the decision of whether your new partner is in the best interest of the children when making custody and parenting time decisions. If you are forcing your children to bond with another and it is determined that it is not healthy for them then this could affect your time with them.
Of course, if you have pleaded cruelty and abuse has been found this will affect the Court’s determination of custody, parenting time, support, and other decisions the court may make.
Therefore, while this fault is not typically a consideration it can affect the Court’s decision making in certain circumstances.
Contact Our New Jersey Divorce Lawyers
The bottom line is that if you’re getting divorced, you need a competent family law attorney in your corner. Fortunately, you’re in the right place. Contact HD Family Law today to schedule your initial consultation with our experienced legal team.
