Divorce – State FAQ – New Jersey
Residency requirements, venue and procedures
Q: How long must I have lived in New Jersey prior to filing for divorce in an New Jersey court?
A: In order to file a no-fault divorce in the State of New Jersey, at least one of the parties to the divorce must have been a bona fide resident of the State of New Jersey for a period of at least one year prior to the filing of the action.
Q: What are the terms used to identify the parties in a divorce proceeding?
A: The party filing the action is called the Plaintiff, while the other party to the divorce is referred to as the Defendant.
Q: What is “venue,” and what is the proper venue for a divorce case?
A: “Venue” refers to which type of court and in what locality the case is filed. In New Jersey, proper venue for the divorce action is the Superior Court, Chancery Division, Family Part.
Q: What is the title of the document initiating the action for divorce? The order granting the divorce?
A: The title of the document initiating the divorce proceeding is a Complaint for Divorce, while the title of the order granting the divorce is referred to as the Judgment of Divorce.
Grounds for divorce
Q: What is meant by “grounds for divorce”?
A: A “ground” for divorce is a “reason” for divorce. A set of judicially recognized reasons for divorce exist in New Jersey. You must use one or more of these reasons to justify your divorce.
Q: What are the recognized grounds for divorce in New Jersey?
A: New Jersey law allows for no fault divorces based upon the parties having lived separate and apart without cohabitation for an uninterrupted period of eighteen (18) months or irreconcilable differences which have caused the breakdown of the marriage for a period of six months and which make it appear that the marriage should be dissolved and that there is no reasonable prospect of reconciliation. Other general grounds upon which a divorce may be obtained are:
2. Willful and continued desertion for one year;
3. Extreme cruelty;
4. Drug/alcohol addiction;
5. Institutionalization for mental illness for 2 or more years;
6. Imprisonment for 18 months or more; and,
7. Deviant sexual behavior
Q: On what basis does the court decide how marital property is divided?
A: New Jersey is a so-called “equitable distribution” state. This means that the division of property and debts between the divorcing parties should be fair and equitable, but not necessarily equal. The court has wide discretion and will take all factors into consideration.
Q: Is the “separate property” of one spouse subject to being divided up?
A: The question here is whether property “belonging to” one of the parties should be included in the marital estate for purposes of an equitable division. Generally, separate property acquired before the marriage or by gift or inheritance during the marriage may be excluded from the marital estate if neither the property nor its income has been used for the common benefit of the parties during their marriage.
Q: What if the parties occasionally use an item of separate property (for example, silver table utensils inherited by the wife) for the benefit of both parties?
A: The property may be subject to division. Where the parties regularly use property acquired by one party before marriage for the common benefit of the parties, it is more likely to be available for consideration in dividing property. The frequency of use may be considered by the court in making the decision.
Q: What does the term “spousal support” (or, “alimony”) mean?
A: “Spousal support” (sometimes called “alimony”) is money paid by one spouse to the other due to the payee spouse’s loss of the benefit of the payor spouse’s income due to the divorce.
Q: Is spousal support available while the divorce is pending in court, or only after the divorce has become final?
A: The court may order that one spouse support the other during the pendancy of the divorce action and/or after the divorce has become final. Support awarded pending the final decree of divorce is not to extend beyond the period of time necessary for the prosecution of the divorce action.
Q: What factors will the court consider when determining how much alimony to award to a party?
A: Alimony comes in several different forms in the State of New Jersey. Either party may be awarded one or more of the following types: Permanent alimony, rehabilitative alimony, limited duration alimony or reimbursement alimony. In making an award of alimony, the court will consider the factors listed in the divorce information section of the New Jersey Divorce Main Page.
Child custody and visitation
Q: What is child custody and visitation?
A: “Child custody” refers to which parent will have legal custody of the child(ren), i.e. with whom the child(ren) will live. “Visitation” is the topic of the non custodial parent’s ability to visit/spend time with the child(ren).
Q: Can grandparents obtain visitation rights in New Jersey?
A: Yes. A grandparent or any sibling of a child residing in this State may petition for an order for visitation. It shall be the burden of the applicant to prove by a preponderance of the evidence that the granting of visitation is in the best interests of the child.
Q: If the parents cannot agree on child custody and visitation issues, on what basis will the court decide?
A: The courts in New Jersey may make any such orders as to custody and visitation of any children of the marriage as the court deems reasonable and just after consideration of the circumstances of the parties and the nature of the case.
Q: What is “child support”?
A: Child support is money paid by the non custodial parent to the custodial parent in order to meet the needs of the child(ren).
Q: To what should the parties look for guidance regarding amount of child support to be paid? What standard will the court use if the parties cannot agree?
A: In determining the amount and term of any child support order, the court will consider the following factors:
1. The needs of the child;
2. The standard of living and economic circumstances of each parent;
3. All sources of income and assets of each parent;
4. The earning ability of each parent;
5. The need and capacity of the child for education;
6. The age and health of each parent and child;
7. The income, assets and earning ability of the child;
8. The responsibility of the parent for court ordered support of others;
9. The reasonable debts and liabilities of each parent and child; and,
10. Any other factors the court deems relevant and just.