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Frequently Asked Questions About Divorce Laws in New Jersey

Offered by Florio Perrucci Steinhardt Cappelli Tipton & Taylor, LLC

If you’re moving toward dissolving your marriage, you likely have a lot of questions. Divorce can upend nearly every aspect of your life. It’s important to be prepared and understand how the process works.

Below, you’ll find answers to some of the most frequently asked questions about divorce in New Jersey. Remember, this is general information, not legal advice. Only an attorney can answer specific questions like “how long will my divorce take?” or “how can I financially survive this divorce?” The best way to understand the legal implications of your divorce is to talk to an experienced New Jersey divorce lawyer in your area.

What is a contested vs. an uncontested divorce?

Broadly speaking, in an uncontested divorce, the spouses reach an agreement on all of the major issues to be resolved in the divorce. To get an uncontested divorce in New Jersey, the spouses must agree on the legal grounds for the divorce (see below) as well as:

  • Division of marital property and debt,
  • Alimony/spousal support, and
  • If there are children, child custody, parenting time, child support, and health insurance and medical expenses for the children.

A contested divorce, as the name implies, means that the spouses dispute at least one of those major aspects of the divorce. A contested divorce requires a much more involved legal process that includes filing, serving, and responding to a divorce petition; engaging in the discovery process; going through pre-trial legal motions and hearings; engaging in settlement negotiations; and if necessary, going to trial.

Is New Jersey a no-fault divorce state?

New Jersey law allows no-fault divorces. That means you can seek a divorce on the grounds of “irreconcilable differences” – a legal term for issues within the marriage that cannot be fixed and make it so the relationship cannot continue. You don’t have to go into detail about what those differences are; it’s sufficient to say that there has been a breakdown of the relationship for at least six months.

However, New Jersey is not a “pure” no-fault state; it’s still possible to seek a “fault” divorce for reasons such as adultery. That said, most New Jersey couples who get divorced choose to get a no-fault divorce.

What are the grounds for divorce in New Jersey?

Again, most New Jersey couples choose no-fault divorce based on six months of irreconcilable differences. However, the law also recognizes several other grounds for a “fault” divorce. Those grounds include:

  • Extreme mental or physical cruelty
  • Adultery
  • Desertion or constructive desertion
  • Habitual drunkenness or drug use
  • Imprisonment
  • Institutionalization
  • Deviant sexual behavior

Couples can also divorce on the grounds of separation if they live apart for 18 continuous months.

What’s the difference between separation and divorce?

The basic difference is that divorce ends the marriage and separation doesn’t. In New Jersey, there are two ways to get legally separated but not fully divorced. One option is to seek a “divorce from bed and board,” which is a similar process to a regular, absolute divorce that divides property, child support, and so on. This process isn’t used very often, however.

The more common way to get legally separated in New Jersey is to negotiate a separation agreement; that is, a legally binding contract that addresses the issues that would arise in a divorce, such as child custody, visitation, child support, visitation, and division of property. Again, at the end of the day, you’re still married – and thus can’t marry someone else – but otherwise, a separation is functionally quite similar to a divorce.

Do you have to be separated before filing for divorce in New Jersey?

The short answer is no, you don’t have to be legally separated before filing for divorce. You also don’t have to live separately to file for divorce. You only need to show that you have had “irreconcilable differences” for at least six months to get a no-fault divorce, and it’s quite possible to have irreconcilable differences without moving out. Indeed, it’s possible to continue living in the same residence even after you get divorced.

(Note that if you want to get divorced on the grounds of separation, then you must live separately for 18 months. But these grounds aren’t used often since you can reach the “irreconcilable differences” benchmark in one-third of the time.)

If you are already legally separated, the divorce process is usually easier. Most separation agreements contain a provision that if you later get divorced, the separation agreement must be incorporated into the divorce. This significantly speeds up the process since you have already reached an agreement on most, if not all, of the issues that must be addressed in a divorce. But, again, you absolutely can go straight to divorce without a period of separation first.

How long does it take to get a divorce in New Jersey?

It varies depending on the circumstances. A simple divorce with no children and few assets can be resolved quite quickly, while a hotly contested divorce or one involving complex assets is likely to take longer. There are two timeframes you need to keep in mind when filing for divorce: the time it takes to become eligible to file, and the time it takes the process to play out once you file.

To file for divorce in New Jersey, at least one spouse needs to have lived in the State of New Jersey for at least 12 months. To get a no-fault divorce, either spouse must state that they have had irreconcilable differences for at least six months. Certain types of fault-based divorce, such as adultery or abuse, do not have this waiting period, while others have a longer waiting period.

From the date you file for divorce, New Jersey courts require that the process take no longer than 12 months to complete. There are occasional exceptions for complex cases, but most divorces are indeed resolved in less than a year. The shortest possible timeframe for a simple, uncontested, no-fault divorce is under two months.

What is each spouse entitled to in a divorce in NJ?

Each spouse is entitled to their share of the marital property – which immediately raises the question of what “marital property” is. In general, any property that either spouse acquired during the marriage (that is, from the date of the marriage to the date of the divorce) is considered marital property, even if only one spouse’s name is on the property itself. For example, if your spouse bought a car while you were married, then that car is considered marital property, even if your name is not on the title or registration.

The marital assets may include:

  • The marital home or other real estate
  • Businesses
  • Vehicles
  • Bank accounts
  • Stock options
  • Pensions
  • Lottery winnings

One important exception is inheritances. If one spouse inherits property that is solely in their name, that is considered separate property, even if it was inherited during the marriage. However, the inheritance must be kept separate and not “commingled” with another asset that belongs to both spouses.

The same principle applies to debt. If a debt was acquired during the marriage, then it is considered marital debt, even if only one spouse’s name is on the account. For example, if you opened a credit card or took out a personal loan during the marriage, that is usually considered marital debt even if your spouse’s name is not on the loan. There are only a few exceptions, including gambling debts, certain types of student loans, and anything spent on an extramarital affair.

It's quite common in divorce proceedings for there to be disputes both about which assets are subject to division and which should be separate, not to mention disputes regarding the value of those assets. Once the court determines which assets are shared between the parties, it must determine how to split them.

Is New Jersey a 50/50 divorce state?

No, New Jersey is not a community property or 50/50 state. New Jersey is an “equitable distribution” state, which means the court is instructed to divide assets in a manner that is fair, but not necessarily equal. The courts have wide discretion in determining a fair division of property. Some of the factors New Jersey courts consider include:

  • Duration of the marriage
  • Age and health of the divorcing spouses
  • The standard of living during the marriage
  • Each spouse’s economic circumstances
  • Any other relevant factors

This is one of the reasons it’s so important to have an experienced divorce lawyer representing your interests. There is no simple formula to determine how your marital property will be divided. An attorney who knows the system and understands how the courts weigh these factors can make a significant difference in the outcome.

When should I begin financially separating from my spouse?

While it depends on the situation, you generally want to get your finances disentangled from your spouse’s finances as soon as possible if you’re moving toward divorce or separation. That includes both joint assets (for example, moving your money from a joint bank account to an individual bank account) and joint debts (for example, paying off a joint credit card or suspending it so no further charges can be made).

This is important for a few reasons. First, you don’t want your soon-to-be ex-spouse to start spending money or racking up debts, either to split their individual costs with you before your separation or simply out of spite. Second, shared debts can continue to affect your credit score, even if the court orders your former spouse to pay them.

Apart from these strictly financial considerations, separating your finances protects your privacy (by keeping your personal expenses off a bank statement that your spouse can see, for instance) and helps you mentally move forward from the marriage.

How much does a divorce cost in New Jersey?

The baseline cost to get a divorce in New Jersey is $300 to file the official Complaint for Divorce with the court, plus an additional $25 for a parent education class if you have children. In a contested divorce, there are additional court costs and administrative costs for the various steps in the legal proceedings.

Additional legal documents may be required depending on the circumstances; for example, if either spouse has a retirement account subject to distribution in the divorce, there needs to be a qualified domestic relations order (QDRO), usually prepared by a QDRO specialist for a fee of $400 to $500.

In certain divorces that are hotly contested or involve complex assets, you may need to hire certain experts – such as a real estate appraiser, forensic accountant, or child psychologist – to conduct research and/or testify in court. Experts’ fees vary but generally start at $200 to $300 per hour.

Finally, there is the cost to hire a divorce attorney. Attorneys’ fees vary significantly depending on the law firm and the complexity of the case. New Jersey law allows one spouse to make a motion for a court order to shift their attorney’s fee to be paid by the other spouse – this sometimes happens if one spouse has significantly more income in order to keep both spouses on equal footing during the divorce proceedings.

Do you need a lawyer to get a divorce in NJ?

You’re not legally required to have a lawyer to file for divorce, but it’s usually in your interest to get legal representation. Even a seemingly amicable divorce can get messy quickly, and the consequences of a mistake can affect the rest of your life. A lawyer who knows the system and knows the process can advocate for your interests, advise you on the best way forward, and make sure you and your family have a solid foundation after the marriage ends.

Divorce is always difficult, but you can make the process easier with the right attorney on your side. If you’re going through a divorce or considering a divorce in New Jersey, talk to an experienced divorce lawyer in your area today.

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