Respected Counselors, Litigators and Mediators

Divorce Frequently Asked Questions (FAQ’s)

We commonly receive very similar questions from potential clients in our initial interviews. The list below contains some of the more popular questions that are asked during our consults:

Do I need a lawyer?

No, technically you do not need an attorney to represent you during your divorce. However, we often meet with many divorced individuals who represented themselves during their divorce and who are very unhappy either because they do not think the settlement they negotiated for themselves is fair or because they did not think to include in their settlements language that covered circumstances that eventually came to exist. Also, we encounter many individuals who feel they were treated unfairly by the court, but, in actuality, they failed to follow the strict procedures followed by the court. We strongly recommend that you retain an attorney to advise you of the relevant law in the state and to guide you to a fair settlement of your matter.

Is there any advantage to filing first in a divorce matter and being the plaintiff?

Generally, there is no advantage to being the first party to file in a divorce. A plaintiff is not treated any differently than a defendant.

If my spouse cheats on me, will that help me in the divorce in any way?

If your spouse commits adultery or has an affair, it generally will not be an advantage to you in the litigation. Unless your spouse dissipated marital funds while having the affair, you will not receive more alimony or equitable distribution than you would have received if your spouse never committed adultery.

Is permanent alimony really "permanent?"

Permanent alimony can be permanent, but it does not have to be. If your spouse is ordered to pay what is currently considered "permanent" alimony, he or she will have to pay alimony until he/she experiences a significant change of circumstances. Examples of a change of circumstances can be retirement, disability or elimination of your need for alimony (e.g., if you remarry or are financially independent). The New Jersey Legislature has passed a bill that will eliminate the term of "permanent alimony" and will clarify the circumstances under which a party may apply for a modification of his/her alimony obligation.

What happens if my spouse earns unreported income?

If you suspect that your spouse earns unreported income, there are ways to determine same through the use of a forensic accountant. If you have filed joint tax returns with your spouse in the past, the fact that your spouse did not report income will have an impact on you and your spouse. If your matter cannot be settled and must go to trial, the court is obligated to report to the IRS any unreported income that it discovers.

Do I have to pay taxes on my alimony/child support?

Alimony is tax deductible to the payor and is taxable to the payee. Therefore, if you receive alimony, you will have to pay taxes on it unless an agreement is made to the contrary. Child support is not taxable to the payee and is not deductible to the payor. Therefore, if you receive child support, you will not have to pay taxes on it.

Will my spouse be able to stop paying child support when my children turn 18?

Possibly, yes. The age of 18 is normally the earliest that a parent can stop paying child support on behalf of a child. However, if the child attends college full-time, a parent obligated to pay child support will have to continue to pay support until either the child no longer attends college (i.e., the child drops out of school) or the child graduates.

Will I have to pay all of my children's college expenses?

Not necessarily. New Jersey has a series of factors that it must consider when determining a parent's obligation to pay for a child's college expenses. After a review of those factors, a court may determine that a parent should be responsible for all, some or none of a child's college related expenses.

If my spouse stops paying me child support, can I prevent him from seeing the children?

No. The law in New Jersey is very clear that financial issues cannot obstruct custody/parenting time issues and vice versa. Therefore, you cannot withhold a child from parenting time if a parent is not paying child support. Similarly, you cannot stop paying child support if the custodial parent does not allow you to see your children.

Do mothers always get custody, no matter what?

No. Each parent is equally entitled to custody of his/her children.

Can I relocate out-of-state with my child without filing an application with the court?

If you are the custodial parent of a child and the other parent has parenting time, you will have to file an application with the court if the other parent's parenting time will be affected by the move. A non-custodial parent has the right to object to an out-of-state relocation and a court will have to determine whether the reasons for your move are in the child's best interest and outweigh the other parent's right to maintain their current parenting time schedule.

What if my spouse moves out of the country with our children and refuses to come back?

If the country that the child is in has adopted the Hague Abduction Convention, then you may be able to file an application for the return of the child here in New Jersey. The Hague Abduction Convention is a global treaty adopted by over 90 countries to ensure a method of returning kidnapped children to their home countries. If the country in which the child is in is not a signor of the Hague Abduction Convention, it may prove very difficult to have the child returned.

If my spouse had nothing to do with my business during the marriage, can he/she still receive a part of the business?

Yes. If you have your own business, even one established before the marriage, it can still be subject to equitable distribution if your spouse was not involved in the business at all during the marriage.

If I leave the marital home during the divorce, do I lose my rights to the house?

No, you will not lose your equitable rights in the home. However, it may become difficult for you to return to the home and it is common for the spouse remaining in the home to change the locks once a spouse has departed from the home.

Do I have to be on the Deed to the marital home to receive equitable distribution?

No, you do not need to be on the Deed to receive equitable distribution from the marital home.

Is my spouse entitled to my pension?

If you contributed to your pension during the time you were married to your spouse, then your spouse is entitled to an equitable share of your pension. If you married your spouse after you stopped contributing to your pension or after your pension went into pay status, your spouse will most likely not be entitled to any portion of it.

Are gifts/inheritances subject to division via equitable distribution?

If you have received a gift or inheritance from a third party, it will not be subject to equitable distribution. However, gifts between spouses are generally subject to equitable distribution.

If my significant other and I live together long enough, will we be considered common law spouses?

No, New Jersey does not recognize common law marriages.

Do prenuptial agreements really work?

Yes, quite often prenuptial agreements are upheld by the courts. If both sides are represented by attorneys, if full financial disclosure has been made by both sides and the agreement is fair at the time it was signed, the agreement will generally be upheld.

Will my spouse have to pay my attorneys' fees?

The general rule in litigation is that each side is responsible for their own attorney fees. However, a court may be persuaded to have one spouse pay all or a portion of the attorney fees of the other party if that spouse showed bad faith during the litigation. However, the power to award counsel fees is solely within the discretion of the trial courts.