When To File For Divorce

Ending a marriage is a life-changing and challenging decision. Knowing when to file for a divorce can be difficult, as circumstances vary and require careful consideration before making any decisions. Factors to consider may include legal options, types of divorces, personal situations, and more. Understanding your options when filing for divorce is crucial to enable you to make informed decisions.

Legal Considerations

When considering whether to file for divorce, it is essential to understand the procedures and laws governing the divorce process so you know what to expect if you file.

Residency

New Jersey law states that either party must have continuously resided in New Jersey for at least one year before a Complaint for Divorce is filed. The only exception to this requirement is in cases of adultery. This one-year residency requirement is waived if a spouse filed a fault-based divorce on grounds of adultery.

Division of Property & Debts

Dividing up real estate, other financial assets, and debts during a divorce can be messy. Importantly, New Jersey is an equitable distribution state. This means that there is no presumption that marital property and debts must be divided equally. While the Court may indeed end up ordering an equal division of marital property and debts, the law states that marital property and debts must be divided fairly rather than equally divided. Thus, the Court is not required to divide marital property and debts equally.

Child Custody

If the parties to a divorce have children and cannot agree on child custody issues, the Court will decide this issue for the parties. If the Court is called upon to make a child custody determination, the Court will employ the best interests of the child standard. Thus, the Court will make its decision based on what it thinks is best for the children

Alimony

The Court has the authority to award a spouse alimony. New Jersey law states that alimony is intended to allow a financially dependent spouse to continue to enjoy a lifestyle reasonably comparable to the lifestyle enjoyed during the marriage. Alimony can be awarded for a limited amount of time or indefinitely. It depends on the length of the marriage. If the marriage lasted 20 or more years before the Complaint for Divorce is filed, the Court can award open durational alimony without a particular end date. The Court considers many different factors when deciding whether to award alimony. These factors include, but are not limited to, each spouse’s income, earning potential, education, health, and responsibilities for raising children.

Types of Divorces

Grounds for Divorce

New Jersey law states that a spouse may file for divorce based on fault or no-fault. Fault-based divorces include grounds such as adultery, extreme cruelty, and habitual drunkenness or drugging. If a spouse files for a fault-based divorce, they are required to prove with evidence that the divorce is the other spouse’s fault. If a spouse files for no-fault divorce, they are not required to prove anything other than that they have had irreconcilable differences with their spouse that cannot be resolved. Proving fault in a divorce is usually time-consuming, expensive, and stressful. Thus, the vast majority of spouses elect to file for no-fault divorce.

Contested Divorce

A contested divorce is when both parties are not in agreement on how to resolve all issues in the divorce. Such issues may include fault-based grounds for divorce, child custody, visitation, child support, alimony, division of property and debts, and any other substantive issues. In other words, if the parties do not have a signed settlement agreement when either spouse files for divorce, the divorce is contested. The parties must settle their differences during the divorce process, or else there will be a trial where the Court will make a determination on all issues. Contested divorces usually involve multiple court appearances, a long list of procedures required under the Court Rules, and extensive gathering of evidence for a potential trial. Contested divorces are often lengthy, expensive, and stressful.

Uncontested Divorce

An uncontested divorce occurs when either party files for divorce with a preexisting, signed settlement agreement in place that resolves all issues in the divorce.e. The parties to an uncontested divorce have elected to resolve these issues through negotiation or mediation rather than litigation. After an uncontested divorce is filed, the Court will simply schedule one court date for a brief hearing to formalize the divorce by entering a Judgment of Divorce. Certain judges will even allow the parties to submit additional paperwork to be divorced instead of having to appear for a hearing. Uncontested divorces are usually shorter, more cost-effective, and less stressful. That said, the uncontested divorce process only works if both parties are willing to negotiate in good faith from the beginning and compromise.

Options Before Pursuing A Divorce

Arbitration

Arbitration is similar to the trial process. The major difference is that the parties pay an arbitrator (usually a retired judge) to hear testimony and consider evidence from both parties instead of having the Court decide the issues in the divorce for them. The arbitrator will make decisions on child custody, alimony, child support, division of property, and any other substantive issues. The arbitrator’s decision is legally binding and very difficult to challenge in court. Parties usually agree to arbitration to expedite a determination of the issues in their divorce or for confidentiality reasons. Parties are allowed to have legal counsel during arbitration.

Meditation

By utilizing a mediator, both parties can negotiate and receive assistance with coming to an agreement to resolve all issues in the divorce. Mediation is very common in the uncontested divorce process. Parties are also allowed to have legal counsel during mediation.

Seek Legal Assistance For Divorce

Divorce is a life-altering decision that requires careful consideration and preparation. No matter the circumstances or reasoning for the divorce, knowing when to take action and how to go about doing so is crucial. If you are considering filing for divorce, the skilled legal counsel at Moskowitz Law Group can help you protect your interests. Contact us today to learn more about how we can help you navigate this process.