FAMILY LAW

Woliansky & Doyle, Esqs. has long been involved in bringing closure to marital relationships which exist in name alone. While we will always recommend and urge our clients to seek marriage counseling with a qualified marriage counselor, psychologist or clergyman prior to taking the step of a divorce or separation, there comes a time when the client knows that the marriage is over. In those situations we can provide you with experience and guidance in the necessary steps you must take to protect your rights.

What Will Woliansky & Doyle Discuss at the First Conference?

You may want to bring with you any court papers which have been served on you and any financial documents such as paystubs, tax returns and employment benefit statements.

Depending on individual circumstances, Woliansky & Doyle may discuss several topics with you, including:

	Possibility of solving marital problems through counseling.
	Assistance to you as a parent in meeting the needs of your children in determining child custody and visitation.
	Grounds for divorce.
	Financial matters involving child support, alimony, and equitable distribution of property acquired during the marriage.
	Legal rights of the parties.
	Procedures in court.
	Restraining orders and the Domestic Violence Act.
	Procedures in our office for handling the case. We will also need to discuss financial arrangements for legal services and court costs at the first meeting.

How is a Divorce Started?

In order to start the divorce you will need us to file a formal document, called a "complaint," with the appropriate court. This complaint includes information on the marriage, residency, present living arrangements, children of the marriage, and the specific cause claimed for seeking a divorce. A copy of the complaint will be served by us on your spouse, either by mail or in person by a sheriff. If your spouse is represented by an attorney, that attorney, instead of your spouse, may receive the complaint.

In New Jersey, all divorces are heard in the Family Part of the Superior Court. As a matter of fact, all legal matters relating to the family are heard in this court.

What Should I Do if My Spouse Has Filed for a Divorce or I have received a letter from my spouse’s lawyer?

You should consult with Woliansky & Doyle promptly for advice. You will need to be heard by the Court as to child custody, child support, alimony, and division of the property you and your spouse acquired during the marriage. You can only do this by filing the proper papers and appearing in court. You may also wish to heard on the grounds for the divorce. If you don’t file an Answer contesting the Complaint of your spouse, the case will be decided by default by the judge. You will then be bound by the decision of the judge, without the judge hearing your side. Your spouse can then enforce the judge’s decision against you which may result in penalties being imposed, including incarceration in appropriate cases. Even if you want to be divorced, you should consult Woliansky & Doyle immediately for professional advice on all other issues in your case so you understand the choices you can make and the possible consequences of doing nothing.

What If I Am Sued for Divorce and I Have Grounds for Divorce?

You may also file a Complaint against your spouse called a counterclaim.

Can My Spouse and I Resolve Our Divorce Issues Before Suit is Filed?

The simple answer is “yes”. Working with both you and the attorney for your spouse, we can develop a written Property and Support Settlement Agreement in advance of either party filing for a divorce. If negotiations are undertaken in good faith, matters may be worked out without the pressure of a court imposed time table and the inherent inter-party rancor engendered court house negotiations. If both you and your spouse agree to the terms of the agreement, the actual filing of the Complaint and granting of the Divorce is significantly expedited.

How Long Does It Take to Get a Divorce?

The time needed to complete a divorce depends on many factors, including the degree to which you and your spouse may have agreed on many matters and the backlog of cases in your county. Woliansky & Doyle can often offer some general guidelines on the length of delay which you are likely to experience in your particular case. If both spouses have agreed on all aspects of the divorce, it may be granted in as little as three or four months. If aspects are contested, the divorce may take years.

How Do We Deal With Marital Problems While the Divorce is Pending?

The Court can make temporary decisions (called “pendente lite”) about:

	Temporary custody of minor children.
	Temporary restraints including who lives in the marital home to keep one spouse from committing crimes such as assault against the other spouse.
	Temporary support payments for a spouse and children.
	Restraining Orders preventing the disposal of property to insure payments of support or to protect a spouse's share in that property.
	Visitation rights to the parent who does not have physical custody of the children.
	Any other temporary orders at the request of a spouse or because the judge believes it will be fair and equitable.

What Happens While I'm Waiting for the Court Decision on a Final Divorce?

After the complaint and Answer are filed, there is usually a delay of several months while you and your spouse are required to exchange asset and income information. You will them be referred to a Court Early Settlement Panel consisting of volunteer lawyers who have no involvement in your case who informally listen to a presentation by our firm and your spouse’s lawyer and make a settlement recommendation. If child custody is an issue, a mediation will also be scheduled. During this time, we will try to assist you in settling financial questions and other differences. If your case can be resolved, a written settlement agreement establishing a division of marital property and financial obligations, custody of children, child support and alimony will be prepared and signed by you and your spouse. The divorce will then proceed quickly. Probably over 90% of divorce cases in New Jersey are settled by agreement.

Do I need Grounds for Divorce in New Jersey and if so, what are they?

Under N.J. Laws, you need grounds for divorce. The notorious “incompatibility” is not one of them. However, if you discuss your case with us, we may be able to advise you as to the grounds for divorce you do have. Divorce may be granted for any of the following causes:

Adultery.

	Willful and continued desertion for 12 or more months. Either physical desertion or refusal to have sexual relations with the other spouse may establish this cause.
	Extreme cruelty, including any physical or mental cruelty that endangers your safety or health, or which makes continued living together improper or unreasonable.
	Separation, if separate and different places of living have been maintained for at least 18 consecutive months or more and there is no reasonable prospect of reconciliation.
	Voluntarily-induced addiction or habituation to a narcotic drug or habitual drunkenness for 12 or more consecutive months.
	Mental illness which resulted in the spouse being kept in an institution for 24 or more consecutive months after the marriage was begun.
	Imprisonment of the spouse for 18 or more consecutive months after the marriage was begun. (The cause for divorce can be charged after the defendant's release from prison only if the husband and wife have not resumed living together after imprisonment ended.)
	Deviant sexual conduct voluntarily performed by the defendant without the consent of the spouse.

What is a 'No Fault" Divorce?

"No fault" is the term some people use to describe a divorce in which the cause for court action was separation in different homes for 18 or more consecutive months. If a husband and wife have lived separate and apart for that length of time, either may file for divorce. The cause is the length of separation. Neither spouse is required to offer any evidence of fault. "No fault" does not mean uncontested. An uncontested divorce occurs when all economic, custody and visitation factors have been settled.

Who Will Get Custody of the Children?

The welfare of children is the major concern of the court. Property rights and welfare of the adults involved are secondary. Neither parent is automatically entitled to custody of any children. The judge may consider many factors which will be discussed in court at a hearing. The factors may include ages and sexes of the children, compatibility with each parent, ability of the parent to care for the children, and the personal conduct of each parent. The primary consideration of the court is to make a determination as to what is in the best interest of the children.

Will There Be Alimony?

The judge will decide these and other issues after hearing what is said in court. The final decision will depend on the testimony which is given in court. There is no specific table, schedule or formula under which the court awards alimony, but the court is guided by statute and case law in making the alimony award. The court may award permanent, rehabilitative, limited or reimbursement alimony. Woliansky & Doyle will discuss these with you and will help you to make your needs and wishes clear to the judge.

If There are Children, Will There be Child Support?

The simple answer is “yes”. Children are entitled to be supported by both parents. The New Jersey Supreme Court has published a schedule of child support awards as well as child support guidelines and work sheets for calculating child support. The parent who has the primary residential custody will receive support from the other parent.

Who Will Get the Property?

In New Jersey each spouse is entitled to a fair share of all property acquired during the marriage. The judge will decide on an "equitable distribution" of property after hearing testimony. Equitable distribution does not mean equal distribution and is not automatically a 50-50 division. The standard for division of the marital property have been by an extensive body of case law. In making the division of assets the court may not consider marital fault or the reasons for the divorce in dividing the property.

When is a Divorce Final?

A judge will issue a judgment, declaring that a marriage has ended under the laws of New Jersey. After the divorce is final, changes in some arrangements (custody, visitation rights, amounts of support, etc.) may be reconsidered if either party can demonstrate a change of circumstances to a judge. Woliansky & Doyle can give you further advice when needed.