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Arthur David Malkin, Esq. - Attorney | Parsippany, NJ google-plus-logo-33-33 facebook-icon-33-33 LinkedIn_Icon_1C-30-26 Twitter_Icon_1C0-30

Grounds for divorce in New Jersey

A party initiates a divorce by filing a complaint, which must state a reason, called "grounds" for divorce.  In New Jersey, a no-fault divorce is available on grounds of separation after 18 months of separation, or based on irreconcilable differences.


A divorce is not available by simple mutual consent of the parties. In order to get a divorce before 18 months, it is necessary to file based on a fault ground such as adultery or cruelty.

Such fault-based divorces can become difficult because of the need to reveal unpleasant issues that have come up during a marriage. Many parties choose to file based on cruelty.


In these cases, you must specify incidents of cruelty in the complaint. However, even fault-based divorces can be obtained quickly if they are uncontested.


At your initial consultation, I will discuss your situation in order to determine the appropriate grounds for divorce in your case.

In cases in which the non-filing spouse chooses to answer the complaint, each party files a case information statement in which the party reveals his income and expenditures, as well as information regarding children of the marriage.


That statement can be omitted in cases where no children were born of the marriage and no economic issues exist between the parties.


The information in the case information statement determines the amount of child support according to our guidelines, which a party may owe to his/her spouse. I have the form on computer software to automate the process of filling it out.

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When children are involved in a divorce, the court requires both parties to agree to a parenting plan (even if the divorce is uncontested).


If both parents cannot agree about parenting issues, then each party must attend a parenting workshop sponsored by the court. These workshops discuss the effects of divorce on children.


Even if you and your spouse reach agreement on parenting issues, I recommend the workshops for any divorcing parent. They can help you to help your children deal with the transition to divorce. Mediation is also available on parenting issues.


The New Jersey Courts recognize that prolonged and bitter custody battles are harmful to children. In a particularly contentious case, the Court wrote:


"Both [the mother and father] must come to understand that security, peace of mind, and stability are every child's right. Their inability to deal constructively with each other deprives their son of his due, which is within their power to give.


Professed love is no substitute where it results in turmoil and uncertainty for the child who is pulled in opposite directions by his parents.


This child will receive what he desperately needs in this regard only if both parties are genuinely prepared to subordinate their individual needs to the best interests of the child and begin to communicate with each other solely for the benefit of the child.


We urge the parties to make an effort to resolve this matter between themselves with professional assistance. Otherwise, there is a substantial risk that they will doom their child to a future of conflict, sadness, and certain psychological harm."


Tahan v. Duquette 259 N.J.Super. 328, 336, 613 A.2d 486, 490 (N.J.Super.A.D.,1992)


All divorcing parents should apply these words of wisdom for the benefit of their children.

What about the children?

Most often, the court will at some point schedule an early settlement panel for your case. The panel is composed of 2 experienced matrimonial attorneys who will objectively evaluate your case.


They will then tell you what the possible outcome would be if you took the case to trial before a judge.


These panels are helpful because they can give the parties an independent assessment of the case from someone other than the lawyers involved.


Often the parties can reach agreement then and there. I bring a laptop computer to court so that I can prepare the paperwork immediately and prepare a final judgment based on the agreement.


That way, the parties can be divorced right away. I encourage all clients to reach agreement on their divorce disputes, because even if the parties are not happy, at least the agreement is voluntary, and the outcome is not imposed by the judge.


Voluntary agreements have a better chance of lasting for that reason. That way, the divorce can be finalized right then and there.


In many cases, the parties will want a divorce for separation, which would not be available until months later.


In that event, the parties should enter into a written separation agreement in which all outstanding issues can be resolved.


At the time the divorce is granted, once all issues have been revisited and resolved to the satisfaction of the parties, the judge incorporates the agreement into the final judgment of divorce.  


Since New Jersey now allows for divorce based on irreconcilable differences, this situation is no longer as common.

Working it out

How does the panel make its evaluation? The primary consideration is the relative financial situation of the parties. Most people just cannot live as comfortably on one income as on two.


Therefore, in many cases, the wealthier spouses will incur obligations in the form of support or future earnings and benefits. The property of the marriage is divided up in a similar manner.


The objective is not to leave each spouse with half, but to allow each party a standard of living roughly approximating that of the marriage if possible.


The wealthier party may be upset because he or she may incur such an obligation. The other party may find that even though she or he is receiving monies, and/or a share of property, she or he still cannot live quite as comfortably as before.


Divorce involves emotional issues, but in most divorces, fault does not enter into the equation. Many people have trouble accepting the fact that after all the problems, the result hinges simply on the bottom line.


Although people divorce for many reasons, the court simply does not factor those reasons into the economic equation.


It comes down to the math. Two minus one unfortunately does not equal two when it comes to post-divorce finances. But the right settlement can help to assure that the answer does not have to be one-half, either.

Two minus one

Every divorce is unique because so many variables are involved. Some will be simple and quick, while others will be expensive and unpleasant.


For that reason, fees will vary. If you are thinking of a divorce, come in for a free consultation. I'll be happy to discuss the issues that might come up and the fees I would charge.

No divorce is like yours

So you've gone through the divorce process - you have a final judgment (one way or the other) perhaps incorporating your agreement with your former spouse.


You've resolved all parenting issues. If only life were always that easy!


If you're the receiving spouse (not necessarily the wife)


If your former spouse is not paying support or alimony or is otherwise not in compliance with a judgment of divorce, you need to go back to the court and make a motion for enforcement.


Many people try to do this without lawyers. But do you really want to figure out how to properly file and serve motion papers? I can help you file the papers and get an order of enforcement.


Once you have that order signed by the judge, I'll do whatever it takes to get you or your child's money!


If you're the paying spouse (not necessarily the husband)


But what if you are the spouse paying alimony or support? What if you legitimately cannot meet your obligations under the judgment of divorce due to changed circumstances?


Yes, you have rights too! You can file a motion for modification of your judgment. You can do this either on your own or as a cross-motion to a motion for enforcement.


You will have to document the changed circumstances, and the court will expect you to maintain employment as appropriate for your earning ability as possible.


Whatever you do, don't violate the judgment or ignore motion papers served on you. You'll only get into trouble and the judge will not hear you.


Even if you are not the receiving spouse, you can file for modification if you need a change in your judgment of divorce (regarding parenting issues or anything else).


Just because you're divorced doesn't mean you're all alone. Any judgment of divorce can be reopened for a motion. Don't try to handle your post-divorce issue yourself, come in for a FREE initial consultation!

After the divorce, now what?

While domestic violence, sadly has always been a major social problem; fortunately, awareness of domestic violence has increased in the recent years.


Domestic violence harms society because it tears apart the family, the fundamental institution of society. It affects women and men of all races, religions, and socioeconomic backgrounds.


Victims of domestic violence often live in fear and feel helpless to change the situation. Many are afraid to leave an abusive spouse, family member, or partner because of the possible repercussions.


Nevertheless, only the victim of domestic violence can stop the situation, and victims owe it to themselves to seek help immediately.


In New Jersey, there are many resources available for victims of domestic violence. For resources, click Help Resources for Battered Women in New Jersey.


A victim of domestic violence, upon removing herself or himself from the dangerous situation, will most often have legal needs to address.


Most victims of domestic violence will want to obtain a restraining order from the court. I can assist in this process. A victim of domestic violence should proceed either to the county courthouse during regular business hours, or during other hours, to a local police station.


The alleged victim will immediately be asked to file a report of the incident of domestic violence, and will also be asked if criminal charges should be filed.


The next step is to proceed to a judge who will review your report and determine if the situation warrants a temporary restraining order (TRO). If a judge finds such an order is warranted, he will grant it, and the police usually serve it on the defendant the same day.


A TRO usually prohibits contact or communication between the parties, and can require the defendant to surrender any weapons. Temporary support can be obtained through at TRO as well.


A temporary restraining order is granted ex parte without the defendant receiving an advance notice of the application. For that reason, usually within the next week, the judge granting the TRO will schedule a hearing to determine if the restraints in a TRO should become permanent.


A TRO, though temporary, is valid as soon as it is served, and may be enforced by the police as necessary. Violation of a TRO is an offense that can lead to incarceration.


Domestic violence hearings are like criminal proceedings and can result in penalties; however, they are like civil proceedings because a plaintiff need only present proof by a preponderance of the evidence (a civil standard) and not by the familiar criminal standard of beyond a reasonable doubt.


The reason for this is that domestic violence takes place behind closed doors, and for that reason victims of domestic violence would have difficulty proving their case under the more stringent criminal standard.


However, a violation of a restraining order is contempt of court, a criminal offense, and in those cases the criminal standard applies.


Domestic violence problems often arise in the context of a divorce. The court handles domestic violence separately from divorce proceedings.


Nevertheless, the presence of a restraining order can make resolution of divorce issues difficult, especially when children are involved, because the parties cannot communicate directly with each other.


I will always advise a divorce client complaining of domestic violence to obtain a TRO if it is necessary. However, a party to a divorce should never use domestic violence proceedings solely to gain an advantage in a divorce matter.


Almost all divorces involve a high level of domestic discord or "contretemps" in which parties constantly argue heatedly over even minor issues.


However, such discord does not always rise to the level of domestic violence that would warrant a judge to grant a TRO or permanent restraining order.


Divorcing clients therefore, should always consult with the attorney before deciding to obtain a TRO. The line between domestic contretemps and domestic violence is often close, and I try to advise clients as best I can of what a judge might do under each circumstance.


Again, while domestic violence affects all of us, only the victims of it can take charge of the situation.


When they do, they will find a network of qualified experts who can help with economic, social, and psychological issues that arise. My role as an attorney is to help with the legal problems.


When I represent victims of domestic violence, I consider myself one of many resources available to such victims with our high standards of service; we need a little more time.


Please stop by again. Thank you for your interest!

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