Step 5: the 3 major issue
In almost every contested divorce, the issues of contention involve the distribution of assets and debts, child custody and support, or alimony. If you and your spouse have unresolved differences about these issues, you should understand how New Jersey courts typically treat them.
Property division
New Jersey law is based on the concept of equitable distribution which espouses fairness. The court will consider a number of factors when attempting to fairly divide property and debts.
- Equitable distribution does not apply to separate property which may include
- Assets from before the marriage
- Gifts or inheritances
- Length of marriage
- Age and health of spouses
- Property each spouse contributed
- Financial situation of each spouse
- Sacrifices made by each spouse for the other’s success
- Appraised value of properties
- Responsibilities for childrearing
- Tax liabilities
Once the value of the property has been determined, the judge will distribute it accordingly. When a property can be divided, the judge will award the appropriate share to each spouse. If the asset is indivisible, the judge may order its sale and divide the proceeds. The judge may also award a share in a property like a business, in effect making spouses co-owners. In some cases, a judge may award an asset to one spouse while awarding another asset of similar value to the other.
Child Custody
The ultimate goal in any child custody decision is to place the child in a situation which is most conducive to his or her wellbeing. When making a decision, the judge may consider these factors:
- Physical safety—any parent with a history of domestic violence is likely to be disqualified from custody or have limited access to the child. However, most courts favor shared parenting, so there must be demonstrable proof that a parent poses a physical risk to the child
- Emotional engagement—courts favor keeping siblings together and will allow mature children to voice their preferences.
- Shared parenting—courts will prioritize co-parenting, and attempt to provide time for both parents with the child. Any interference in these interactions on the part of one parent may lead to loss of certain parenting privileges.
- Custody arrangements—if you and your spouse can agree to a parenting schedule, the judge will typically accept it. Otherwise, the court may require mediation or appoint an attorney to represent the child.
Spousal Support
Spousal support is very closely tied with property division in New Jersey. Although a formula is not used in New Jersey, the ultimate goal of spousal support is to maintain the lifestyle that both spouses experienced during the marriage, as well as sharing the financial burdens of the divorce. The judge is likely to consider the following factors when making an alimony determination:
- Length of marriage
- Standard of living during the marriage
- Age and health of each spouse
- Income and earning potential of each spouse
- Financial contributions to the marriage
- Tax liabilities
- Property division
A judge may also decide on the type of alimony awarded.
- Temporary alimony is only to sustain a spouse while the divorce is ongoing
- Limited duration is for a set number of months or years and is usually awarded in cases when the marriage was of shorter duration
- Rehabilitative alimony is to support a spouse while they prepare to return to the workforce.
- Permanent alimony is usually awarded for longer marriages and spouses who are incapable of supporting themselves.