Frequently asked questions for divorce cases:
1. How much will a divorce cost me? Most attorneys are hesitant to give any kind of price quote over the phone for a matrimonial matter because to give a price quote before having a chance to sit down and speak with that potential client could put both parties in an awkward situation further down the road. For example, a potential client may come in wishing to retain an attorney on an uncontested divorce matter. An uncontested divorce is a divorce where the other spouse has either failed to reply to the Complaint for Divorce, or a matter in which all of the issues have already been settled. Often times, litigants may think that a matter is going to be uncontested, but the other spouse usually ends up changing their mind and the matter quickly escalates into a heated and contested divorce matter, usually involving issues of custody and support. Therefore, the question of how much a divorce will cost depends on the complexity of the matter. The average range of fees in the Union County and Middlesex County area generally from $400.00 per hour. However, when shopping for an attorney, one must consider that the most expensive attorney is not necessarily the best attorney. Therefore, it is strongly encouraged that before hiring any one attorney, you shop around and make appointments with various attorneys to discuss your matter in detail. This interview process will allow you to get a feel for the attorney and whether or not you will be compatible with his/her personality and strategy. Most matrimonial practitioners require a retainer fee before the start of any matrimonial matter. A retainer fee is an up front payment of your legal fees. In other words, you are paying your bill in advance by the amount of your retainer. As the attorney begins to do work on your case, the hourly fee is deducted from your retainer. The New Jersey Rules of Court were recently amended to provide that any unused portion of retainer fees must be refunded to the client. Therefore, before signing any retainer agreement with an attorney, be sure to make sure that the retainer agreement specifically provides that any unused portion of a retainer fee will be refunded to you. Further, the Rules were also amended to provide that clients must receive a statement of services from their attorney at least once every ninety (90) days. My practice is to send out a statement once every thirty (30) days so that you, as the client, may see what charges have been made during the previous period. Attorneys who do not send out statements on at least a monthly basis face the risk of surprising their clients with a large three (3) month bill for services rendered.
2. How long will a divorce take? Matrimonial cases have no set time limit within which they are to be completed. How long a divorce takes usually depends upon the position that the parties are taking. In other words, if one party takes an unreasonable position and is unwilling to settle, then the matter will have to be resolved by a Judge by way of a trial. Unfortunately, due to an overwhelming number of divorce filings in recent years, it may take anywhere from a minimum of six (6) months to two (2) years for a case to reach conclusion by way of a trial, if not longer. However, if the parties are able to resolve their case with the assistance of their attorneys, then Courts are usually prone to quickly schedule a uncontested hearing to put through the settled matter. Other issues that may prolong a matter are issues regarding custody or the evaluation of a business. If custody is a bona fide issue, then the Courts will often appoint an expert to do a custody evaluation. Usually, these custody evaluations take a period of months to complete. After the expert has completed his/her evaluation and submitted a report to the Court, then the attorneys have the option of hiring their own independent expert to counter the Court appointed expert, which causes further delay in the proceedings. As mentioned above, if a matter involves the valuation of a business, then this will also delay the divorce case as such evaluations also take a period of months to complete.
3. While the divorce case is pending, can I get support from my spouse? The answer to this question depends on the circumstances. Obviously, if one spouse has left the marital residence and is refusing to pay any child support, if children are involved, then the Court can order the payment of child support upon the filing of a Motion for pendente lite (pending the litigation) support. In order to obtain such support, one must file a Motion with the Court setting forth the specific relief that is requested. In cases where there is a substantial difference in incomes between the parties, the Court may also award pendente lite spousal support to enable the spouse with the lesser income to meet his/her expenses during the litigation. Like child support, this support is also requested by way of a Motion. However, with both of these support Motions, certain procedural requirements must be met. These requirements can be discussed at the initial consultation.
4. Do I have to wait 18 months before I can file for divorce? No. In order to file for divorce in New Jersey, you must allege one of two basic grounds for the filing of the Complaint for Divorce. One cause of action is an 18 month separation. In order to qualify for this cause of action, the husband and wife must have lived separate and apart, in different households for the past 18 consecutive months. The other cause of action commonly used for filing a Complaint for Divorce is extreme cruelty. New Jersey Courts have interpreted extreme cruelty liberally. Extreme cruelty can be considered anything from a simple annoyance such as your spouse eating crackers in bed and leaving crumbs on the sheets, to something as serious as physical abuse or adultery. Most Complaints are filed under extreme cruelty because there is no 18 month separation requirement and it only requires the last act of extreme cruelty to have occurred at least 3 months prior to filing.
5. What is a legal separation? A legal separation is simply a separation between two parties. Often times, couples wish to make arrangements regarding the payment of support and/or visitation with children. For that purpose, attorneys can prepare a separation or property settlement agreement. These agreements usually address most or all of the issues the parties may have regarding custody, visitation, support, medical insurance, life insurance, and the payment of debts. Further, if the parties desire, they may also enter into a comprehensive property settlement agreement which will also deal with property distribution issues. However, such a formal separation or property settlement agreement is not necessary in order to begin the tolling of time for an 18 month separation cause of action.
6. How much will I have to pay, or how much can I receive for child support? In New Jersey, child support is based on the New Jersey Child Support Guidelines for children under 18 years of age. These guidelines were amended on July 1, 1999. In order to determine how much support one parent is to pay the other for child support, it will be necessary to know how much income both of the parties make, individually. Once the Court has the two gross income figures for the parties, those numbers are factored into a formula, and using tax charts and a basic child support award table, the Court determines the amount of support that is to be paid. Other factors that are taken into consideration and can affect the amount of child support are any mandatory retirement benefit contributions, the cost of medical insurance being paid for the children, work related daycare expenses, and any other children the parties may have. For a more comprehensive look at the New Jersey Child Support Guidelines, please go to www.judiciary.state.nj.us. When scheduling a consultation with my office, I would ask that you bring with you copies of your three most recent pay stubs, as well as those of your spouse, if they are available; copies of your last year’s income tax return, and proof of any other extraordinary expenses that are paid for the children. With this information, I will be able to give you an approximate amount of support that you may receive, or that you may have to pay.
7. Will all of the assets that we acquired during the marriage be divided 50/50? New Jersey is an equitable distribution state. Distribution of property is governed by N.J.S.A. 2A:34-23. The relevant provision of that statute provides that, “in all actions where a judgment of divorce or divorce from bed and board is entered, the Court may make such award or awards to the parties, in addition to alimony and maintenance to effectuate an equitable distribution of the property, both real and personal, which was legally and beneficially acquired by them or either of them during the marriage. However, all such property, real, personal or otherwise, legally or beneficially acquired during the marriage by either party by way of gift, devise or intestate succession shall not be subject to equitable distribution, except that interspousal gifts shall be subject to equitable distribution.” Generally, what this means is that anything that was acquired by the parties during the marriage from joint marital funds will be subject to equitable distribution. Equitable means fair, not 50/50. However, the practice has generally been that assets acquired during the marriage are divided equally. But there is now beginning to be a shift back towards the original intent of the statute as attorneys think of creative ways to argue for more than a 50/50 split. Further, as the statute makes clear, anything that is received by way of inheritance is not subject to equitable distribution unless it is left as a bequest to both of the parties or if the bequest is commingled with other joint assets. As far as assets that were acquired before the marriage, they are also not subject to equitable distribution in most cases unless they too have been commingled with joint marital assets. Please be advised that all such cases must be discussed on a case by case basis as exceptions may apply.
8. What is the difference between residential and legal custody? Generally, both spouses are considered to have joint legal custody. What this means is that both parties are entitled to consult with each regarding major decisions that affect the children’s lives. Joint legal custody also means having to advise your spouse or former spouse when the children are ill or when you will be taking them away on a vacation. Your spouse or former spouse is entitled to know where the children will be at all times. Residential custody means who the children live with. Generally, the parent of primary residence has control over the day to day decisions that affect the children, such as what they are going to wear, what they are going to eat, and other routine decisions.
9. I am a victim of domestic violence. Can I get a restraining order against my spouse or boyfriend to protect me and my children? How can I get one? In New Jersey, the Prevention of Domestic Violence Act was passed in 1991. That act provides for the issuance of a temporary restraining order (TRO) to a victim of domestic violence. In order to obtain such a restraining order, you must either call the police if an incident of domestic violence occurs during non-business hours or you must go down to your county courthouse and file for a TRO with the domestic violence unit. (If you are experiencing an emergency, call the police immediately at any time of day.) Generally, the DV Unit opens at 8:30 a.m., and stops taking cases at about 3:30 p.m.. The first order you will receive will only be a temporary restraining order. This order is temporary in nature and provides that a final hearing is to be set within ten (10) days of the date of the issuance of the TRO. During this period of time, your spouse or paramour will be prohibited from having any communication or contact with you and is also prevented from having others contact you on their behalf. At the final hearing, you will appear before a Judge who will determine whether or not you have met the specific requirements of the domestic violence statute. If the Court determines that you have met those requirements, then the temporary order will be converted into a permanent restraining order. If the Judge determines that you have not met the necessary requirements, then the Judge will dismiss the restraints against your spouse or paramour. If at all possible, please consult with an attorney at every stage of the process so he may assist you in explaining and meeting the specific requirements of the statute.
10. I have been divorced for a few years and have been receiving child support and alimony. Is there any way to change the amount? Child support may be modified upon the showing of a change in circumstances. In other words, if your former spouse now earns substantially more than he did when the initial support order was set, then you may be able to have a Court increase the amount of child support. Likewise, if supporting spouse’s income decreases, then he or she may be able to petition the Court for a decrease in support. In addition, you can have a child support order recalculated after the passage of three (3) years. However, as with most applications to the Court, certain procedural and legal requirements must be met. Please consult with an attorney.
11. My ex-boyfriend and I were never married. We have a child together. Can I get child support from him? Yes, you may be able to get child support from the father of the child. You will have to file a non-dissolution complaint for support with the Court. However, like any support application, there are procedural requirements that must be met; therefore, consult an attorney
Finally, keep in mind that the above are only general answers to frequently asked questions. The above answers may not apply to your specific fact situation. However, I would be more than happy to discuss your particular case at a consultation. I look forward to meeting you.
