Common misconceptions of NJ family law

March 29, 2018

In a world of “fake news,” access to reliable information about the divorce process is more difficult to come by than one may realize. While many litigants are quick to consult the internet, family members and friends for guidance on their divorce, the reality is that not everything you read/hear about divorce is credible and, even if it is, no two divorces are exactly alike. This blog post will attempt to identify, and hopefully dispel, five of the common misconceptions about divorce in New Jersey:

1. A court will determine alimony using a “formula”

This is entirely false. While New Jersey does implement a “formula” for the calculation of child support (via the child support guidelines), there is no formula for determining an award of alimony. Instead, the determination of alimony in New Jersey is fact-specific, based on an analysis of the 14 factors identified in N.J.S.A. 2A:34-23(b). Although all of the statutory factors are to be considered in determining alimony, some of the most frequently cited factors include the length of the marriage, need of the dependent spouse for alimony and the ability of the supporting spouse to pay it.

2. If I leave the marital home, I will be considered to have “abandoned” it

Though untrue, many people believe that moving out of the marital home during the pendency of a divorce action equates to “abandonment” of that asset. One spouse’s decision to leave the marital home will not necessarily extinguish that spouse’s existing interest in the property for purposes of equitable distribution. If children are involved, however, one party’s decision to move out of the marital home, leaving the children behind with the other parent, could have an impact on custody and the related issues.

3. Our marital property will be divided equally (50-50) between us

While an equal division of marital assets and debts may be appropriate in some cases, New Jersey is an “equitable distribution” state, meaning that property is divided between spouses in a fair and equitable manner and not automatically on a 50-50 basis. Some states (e.g., California) are “community property” states, where marital property is divided between spouses on an equal basis at the time of divorce. In New Jersey, courts divide assets and liabilities on an equitable basis, with consideration of the 16 factors articulated in N.J.S.A. 2A:34-23.1. New Jersey courts have discretion to order a disproportionate or equal division of property, depending on the court finds same to be equitable under the specific facts of the case.

4. I will not have to pay alimony because my spouse committed adultery

This is almost always untrue. Although adultery is grounds for divorce in New Jersey, it generally has no impact on alimony. Adultery committed by a financially dependent spouse does not relieve the other spouse of the obligation to pay alimony, nor does the adultery of the primary earning spouse entitle the other to a higher award of alimony.

The only exception is instances of particularly egregious marital misconduct. In those cases, a court may consider the misconduct in adjusting alimony to the benefit of the aggrieved spouse. By way of example, New Jersey courts have adjusted alimony based on marital misconduct where one spouse spends thousands in marital assets on his or her extramarital affair(s). The weight given to the misconduct, in comparison to the other statutory factors, is at the discretion of the court.

5. My spouse and I are “legally separated,” it’s basically the same as a divorce

While many spouses choose to live separate and apart without pursuing a divorce, there is no formal recognition of “legal separation” under New Jersey law. New Jersey does, however, have a “divorce from bed and board,” also known as a “limited divorce.” There are diverging opinions between practitioners as to whether the Bed and Board Divorce is, for all intents and purposes, a legal separation albeit without the moniker; that, however, is a topic for another blog. The process for a Divorce from Bed and Board is essentially the same as an absolute (i.e., “regular”) divorce, with the rather significant difference being that the marriage still exists at the end of a Bed and Board Divorce. All of the divorce-related issues (custody, support, equitable distribution, etc.) would be resolved, but neither party would be able to remarry.

Why would anybody do this, you ask? One common reason for seeking a Divorce from Bed and Board is to ensure the continuation of health benefits for a dependent spouse. Employers generally terminate spousal health insurance coverage immediately upon divorce. Under a Divorce from Bed and Board, however, it is possible to continue coverage for a dependent spouse. This can vary by employer even with a Bed and Board divorce, so be sure to get confirmation from the covering spouse’s human resources department to confirm whether coverage can be extended to a soon to be former spouse under these circumstances.

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.