FAQ

Navigating your way through the Courts can be a mysterious and challenging process. A knowledgeable and experienced attorney can provide invaluable assistance in understanding the law and the procedures and in doing so can provide you with some peace of mind. The following questions, answers and comments are general in nature however, they are intended to give you a better understanding of the legal process and thereby make a difficult process more bearable.

1. What is Mediation and how is it different from Arbitration?

Mediation is a process whereby the parties retain an independent mediator. The mediator is typically an experienced attorney who meets with each party individually and together in an effort to understand the parties’ positions and expectations. The mediators discuss the needs of the parties and assists in the marital disputes. Typically, a Memorandum of Understanding will be prepared by the mediator.

The parties can be represented by their own counsel throughout this process for legal advice and guidance. The attorneys typically do not participate in the mediation process. Once a Memorandum of Understanding is prepared, the attorney will review it with the client and often will incorporate those terms into a Property Settlement Agreement. Your attorney can prepare a Judgment of Divorce and contact the Court for an uncontested divorce hearing with a Superior Court Judge.

Arbitration is somewhat different from mediation in that the arbitrator, retained by the parties will make a decision on the issues presented. Your attorney will be able to be involved throughout the arbitration process. The attorneys will assist in identifying and narrowing the issues in dispute. The arbitration is handled in a more informal manner than a typical divorce trial. The arbitrator will act as a Judge by making findings of fact and conclusions of law. The arbitrator’s decision will be final.

An exception to the finality of an arbitrator’s decision is regarding the issue regarding custody and visitation. While the parties can agree to custody and parenting time issues, an arbitrator cannot compel the parties to adhere to a specific parenting time schedule. The Superior Court offers custody and parenting time mediation for which the parties can avail themselves. Once a custody and visitation schedule has been mediated, your attorney can prepare the necessary Court Order which can be signed by a Judge.

2. If my spouse is not paying child support, can I deny visitation or apply to the Court for sole custody?

The short question to each questions is no. The child has a right to establish and maintain a relationship with both parents whether they were married or not. Each parent has an obligation to provide for the support of their child until emancipated. The amount of support or the inability or failure to pay support does not preclude that parent from contact with the child.

Of course the failure to pay Court ordered child support could result in your arrest and loss of driving privileges.

3. What is emancipation?

Emancipation of a minor child is the point where the Court declares that the parents are no longer required to support their child. Emancipation is not automatically granted at the age of eighteen (18) or twenty-one (21). Emancipation may occur when the child is married or enters the military service. Pursuant to New Jersey Law, the parents of an otherwise unemancipated child is still required to support that child while attending college as a full time student. The amount of support and the cost of college expenses and shared and your attorney can assist you in determining how college impacts your support obligations.

4. Now that I am divorced, can my ex-spouse take the child out of State?

There is not a simple answer to this question. A custodial parent cannot move from New Jersey without the consent of the non-custodial parent or without a valid Court Order. Consent or a Court Order is not required for a custodial parent to move about within the State of New Jersey. It must be remembered however, that for a move to be permissible it cannot be intended to thwart or prevent visitation with the non-custodial parent.

Removing a child from New Jersey for the purpose of a vacation or a day trip is liberally granted by the Courts and should be agreed to by the parties, absent any real potential for harm to the child. It is often seen as being in the best interest of the child if a parent wishes to take the child out of State for a vacation or visit with extended family. The non-custodial parent has a right to know where the child is being brought and (depending upon prior Court Orders or agreements) a means of contacting the child while away from home.

Removing a child from the country without parental consent or a Court Order is prohibited. The Hague Convention requires that any child wrongfully removed from its country of residence be returned absent extraordinary considerations.

5. What happens to the children when one of the parents dies?

This problem taken alone is simply resolved by the surviving parent taking custody of the minor children. There can however, be numerous complications which arise upon the death of a parent.

When the non-custodial parent dies, the custody of the children will remain unchanged. Of concern in this instance however, is the payment of child support. One of the ways an experienced attorney can protect you in the divorce process is to require the non-custodial parent to maintain a life insurance policy for the benefit of the children. The younger the children and the greater income earning potential of the parent, the greater the life insurance policy should be to insure that the children will have funds available for their continued support.

When the custodial parent dies, the non-custodial parent can take custody of the children. A custodial parent cannot designate a new custodian for the unemancipated children in a Last Will and Testament. Assuming the custodial parent has remarried after a divorce, the new spouse does not take custody of the children from a former marriage.

6. What about visitation rights for grandparents?

Under normal circumstances, a grandparent’s right to see and visit their grandchildren is a right that is only derived through the parents of the child. Grandparents do not have an independent right to visitation with their grandchildren.

Under certain circumstances, a grandparent can challenge this general rule. The grandparent must prove that there will be harm caused to the child by a lack or absence of visitation. The harm to the child must generally be identifiable and specific. It is often insufficient to say that it is in the best interest of the child to maintain a close and loving relationship with its grandparents.

Under certain circumstances, including the consent of the parents, a grandparent can obtain custody of a child. Under those circumstances, the grandparent is entitled to receive child support from both the non-custodial parents. It must be remembered that child support is an obligation of the parents to the child.

7. Do I have to pay for our child’s college education?

In New Jersey it has been determined that requiring unmarried parents of a unemancipated child to contribute to the cost of college (or post-secondary school) education is a benefit to the child and a benefit to society as a whole. Typically, the child is required to apply for any student loans and/or grants which are available. Thereafter, each parent is required to contribute to the extent that they are financially able. The education sought by the child must be reasonable under the circumstances. For a parent to remain liable for the post-secondary school educational expenses of the child, that parent is entitled to be kept informed of the decisions and have some reasonable input and consultation in making any educational determinations.

8. If my spouse filed for divorce, do I have to move out of the family residence?

The short answer is no. Absent agreement between the parties or a Court Order, a spouse is entitled to remain in the marital home during the course of the divorce proceedings.

If the divorce proceedings become acrimonious and there is a potential for violence, it may be in the best interest of all concerned for one spouse to remove themselves from the premises.

9. If I’m paying all the bills at the house and my spouse doesn’t work, can there be a Restraining Order preventing me from going home?

The short answer is yes. Whenever there is an instance of domestic violence, a Temporary Restraining Order can be obtained for the protection of the victim. This will require that the Defendant be removed from the home. Typically, the Defendant will be permitted to return to the home often with police accompaniment for the purpose of retrieving their personal belongings. No disputed items will be permitted to be taken from the home absent an Order from the Court.

10. I don’t have custody of my children, but can I still claim them for tax purposes?

Pursuant to IRS regulations (followed by New Jersey Courts) the custodial parent is entitled to a dependant exemption for income tax purposes. Typically however the parties at the time of divorce share the expenses. This is a fair and equitable resolution to any inequities which may otherwise be caused. Assuming each parent contributes to the child’s ongoing support and that parent maintains some available housing for the child during their parenting time, each parent is generally given a dependant tax deduction. If there are two minor children, each parent typically claims one child as a tax deduction until the older child is emancipated. At that time, the younger child is alternated between the parties. This arrangement typically results in the fairest, most equitable result.

11. I receive alimony and child support, am I taxed on both?

Child support, the receipt or payment, is not a taxable event. Alimony however, is a different matter. The payment of alimony (regardless if it is permanent or rehabilitative, etc.) can be a tax deduction for the spouse paying the alimony. Consequently, the spouse receiving alimony is taxed on the payments received. The tax deduction for the alimony to be tax deductible for the payee, the monies paid must be pursuant to a Judgment of Divorce. The payment must be designated as alimony (not child support) and the recipient is not a member of the same household or filed joint tax returns.

12. I am living with my significant other, what are my rights?

New Jersey has recognized a civil union which provides same sex couples with rights and responsibilities similar to those couples in a traditional marriage. In order to qualify for the benefits conferred by a civil union, a license must be obtained and the parties must meet certain criteria.

It is important to note that a civil union in the State of New Jersey is recognized in other States regardless whether that State performs civil unions. The dissolution of a civil union is obtained by filing a Complaint for Dissolution in the Family Part of New Jersey Superior Court. The Dissolution Complaint has similar requirements to a traditional divorce Complaint.

13. If I file bankruptcy, can I stop my child support and/or alimony payments?

No. Child support and alimony payments are non-dischargeable obligations pursuant to the U.S. Bankruptcy Code. A couple who has filed for divorce and subsequently, one or both parties files for bankruptcy protection, causes the divorce process to be stayed pending the bankruptcy. The automatic stay imposed by the U.S. Bankruptcy Courts prevents the distribution of marital assets while the bankruptcy is pending.

14. I recently got divorced, should I have a Will?

It is recommended that individuals and couples review their Will periodically to insure that it meets your present intentions. A significant lifestyle change such as divorce is a good time to re-evaluate your Will. An experienced attorney can assist you in providing for minor children and/or children from other unions.

During the pendency of a divorce, your attorney should advise you of the need, not only for a revised Will but to insure that your beneficiaries under any insurance policies are properly designated.