How Should I Select an Attorney to Represent Me in My Divorce?
In this age of specialization, no one attorney can be fully proficient in all areas of the law.
In matrimonial matters, as in any other type of legal matter, you should seek an attorney who is qualified and experienced in handling that type of case.
You should feel free to question your prospective attorney as to his or her degree of experience in handling matrimonial cases, and should also inquire as to the attorney’s general reputation and experience with other members of the community and related professionals.
Perhaps most importantly, however, the attorney you select should be someone with whom you feel comfortable and confident in discussing your marital problems.
Is Stark & Stark Qualified to Represent Me in My Divorce?
Our divorce attorneys have over seventy-five years of combined legal practice and have limited their practice to Matrimonial and Family Law.
The New Jersey Supreme Court has a program pursuant to which an attorney can be certified as a Matrimonial Attorney. One of our attorneys is a Certified Matrimonial Attorney by the American Academy of Matrimonial Lawyers (AAML).
One of our attorneys is also a Fellow of the American Academy of Matrimonial Lawyers (AAML); a status shared by only approximately 1,500 divorce attorneys nationwide.
What Will the Attorney Discuss at the First Conference?
In most cases, the attorney will discuss several topics, including: (A) Possibility of solving marital problems through counseling or mediation; (B) Assistance to you as a parent in meeting the needs of your children; (C) Separation from your spouse; (D) Dissolving the marriage by divorce; (E) Financial matters involving support, alimony, real estate and personal property; (F) General court procedures; (G) Procedures in the attorney’s office for handling the case; (H) Financial arrangements for legal services and court costs.
What Information Will I Be Required to Give to or Obtain for My Attorney?
Depending on the nature of your particular case, the attorney will ask you for various information including an itemization of your budget or expenses, a history of your marital problems, wage verifications, past year’s income tax returns, insurance information, employment benefits and pension plan information, an itemization of your assets and liabilities and other similar data.
How Will I Be Charged for My Attorney’s Service?
The fee in a matrimonial matter will be confirmed to you in a specific written fee agreement.
The fees you will be charged will be either computed on an hourly rate or a flat fee for certain tasks.
Our firm bases its fee in a matrimonial action on the nature and amount of work to be performed; and does not normally quote a flat or total fee at the outset of the case since it is difficult, if not impossible, to determine at that time the amount of work which will be required.
However, we will endeavor to give you a good faith budget estimate for your case.
At one of your early meetings your attorney will review and ask you to sign a fee agreement. That agreement will require the payment of an initial retainer, and will also establish the method and amount of subsequent payments on account of total billings.
What Are the Grounds for Divorce in New Jersey?
Under New Jersey law, a divorce may be granted for any of the following causes: (A) Irreconcilable Differences; (B) Willful and continued desertion for twelve or more months (either physical desertion or your spouse’s refusal to have sexual relations may establish this cause); (C) Extreme Cruelty. (This may be physical, mental or verbal conduct by your spouse which makes it unreasonable to expect you to continue the marriage); (D) Separation, for at least eighteen consecutive months or more with no reasonable prospect of reconciliation; (E) Voluntarily-induced addiction to a narcotic drug or habitual drunkenness for twelve or more consecutive months; (F) Mental illness which resulted in your spouse being kept in an institution for twenty-four or more consecutive months during the marriage; (G) Imprisonment of the spouse for eighteen or more consecutive months during the marriage. (This cause for divorce can be charged after the husband and wife have not resumed living together after imprisonment ended); (H) Deviant sexual conduct; (I) Adultery.
Most people file under the no-fault ground of irreconcilable differences.
What Is a “No-fault” Divorce?
“No-Fault” is the term often used to describe a divorce for which the cause of action is irreconcilable differences, and separation for 18-months.
If a husband and wife have lived separate and apart for six months, either may file for and obtain divorce without being required to offer any evidence of the other’s fault such as adultery or extreme cruelty.
“No-Fault” does not necessarily mean that your divorce will proceed more quickly; that the case will not be contested on the issues of distribution of the assets, custody and visitation of the children, alimony, or child support; or, that you will not have to appear in court for the purpose of obtaining the divorce.
How Is the Divorce Started?
The attorney for the party seeking the divorce will file a formal document, called a complaint, with the appropriate court. The complaint includes information as to the date of the marriage, and the specific cause claimed as the basis for the divorce.
A copy of the complaint will be served on your spouse by sheriff, and he or she will then have a period of thirty-five days to answer the complaint by admitting the charges, denying the charges, countersuing you for a divorce on the same or different grounds, or merely asking the court to be heard on the financial issues.
What Happens If My Spouse Will Not Agree to a Divorce?
Under New Jersey law, there is no requirement that your spouse agree to or “sign the papers for” any divorce including a “No-Fault” divorce. Assuming you have the grounds for a divorce and testify that irreconcilable differences have existed in your relationship for six months and there is no reasonable prospect of reconciliation, you will be granted divorce with or without your spouse’s consent or, in many instances, even over his or her objection.
What Should I Do If My Spouse Has Filed for Divorce?
You should consult an attorney immediately for advice as to the choices you can make and the consequences of your possible alternative actions.
How Long Does it Take to Get a Divorce?
The time needed to complete a divorce action depends on many factors including the degree to which you and your spouse can agree on certain matters and the backlog of cases in your particular county.
Your attorney can offer some general guidelines as to the delay which you are likely to experience; but generally if both spouses have agreed on all the financial aspects of the divorce, a final court date will usually take three to four months. If all or any aspect of the case are contested (that is, not agreed upon), a final decision may take up to two years.
What Happens While My Case Is Pending?
During this time, the attorneys will gather and exchange information concerning all the various issues which are in dispute.
A very important part of this process will be your obligation (and correspondingly your spouse’s obligation) to disclose and provide financial information and documentation.
After all of this information has been gathered and exchanged, the attorneys will attempt to negotiate a written agreement as to the division of marital property and other financial matters. These negotiations may be directly between the attorneys (with, of course, your knowledge and authorization) or in a series of meetings with your spouse and his or her attorney.
If an agreement is reached and signed by both parties, the agreement will then be submitted to the court for approval and incorporation into the Final Judgment of Divorce.
Will the Court Make Any Temporary Decisions?
While your case is pending, there will probably be any number of matters which require temporary (Pendente Lite) decisions by the Court. These decisions are made upon written application (Motion) to the Court supported by sworn statements (Affidavits) by you and any necessary witnesses on your behalf. Although your attorney will appear in court for the purposes of arguing and presenting this Motion, the court will not normally take testimony from you or any of your witnesses.
Such temporary decisions may involve: (A) Temporary custody of minor children; (B) Temporary restraints to keep your spouse from interfering with you; (C) Who will live in or be removed from the home; (D) Temporary payments of child support or alimony; (E) Limitations upon the disposal or transfer of property; (F) Visitation rights to the spouse who does not have physical custody of the children; (G) Any other matters which require prompt resolution.
This temporary decision will be in effect until the court either makes a final determination of the case at the time of final hearing or alters its temporary decision on the subsequent Pendente Lite applications by you or your spouse.
Who Will Get Custody of the Children?
The welfare of any minor children is of major concern to the Court, and neither parent is automatically entitled to custody of any children. The Judge may consider many factors such as the ages and sexes of the children, compatibility with each party, ability of the parent to care for the children, and the personal conduct of each parent.
In the final analysis the decision will principally turn on the “best interests” of the children.
Will There Be Alimony? Child Support?
Alimony and child support are two separate and distinct considerations.
Alimony is the amount of support which you personally will receive or which you may have to pay for the support of your spouse.
Child support is the amount of support which is allocated to the children and their needs.
A. Alimony: Both the amount and duration of alimony may be an issue in your case. Alimony may be permanent (until death or remarriage) or for a fixed term of years depending upon the facts of your case.
B. Child Support: New Jersey, like every state, has Child Support Guidelines which, in the majority of cases will determine the amount of child support.
It is important to understand that alimony and child support vary greatly in their legal implications and tax ramifications; your attorney will explain these differences to you as your case progresses.
Who Will Get the Property or Assets of the Marriage?
Each spouse is entitled to an “equitable” share of the property of assets acquired during the marriage. The Judge will decide or you will reach agreement as to your share based upon a number of factors including such things as the nature and value of the particular property or assets, the method in which the asset was acquired, you or your spouse’s need with regard to that particular asset, etc.
Equitable distribution does not necessarily mean 50% – 50% division; and your attorney will review all of the assets with you and make recommendations concerning the distribution of each asset depending upon factors affecting or concerning that asset and the overall case.
What Happens If My Spouse Is Abusive?
Unfortunately, in some instances a spouse may be physically abusive. In such a case, you should immediately contact your local police department with reference to filing a Domestic Violence Complaint. In appropriate cases, temporary restraints can be obtained.
Will I Be Able to Obtain Medical Insurance after My Divorce?
Yes, pursuant to a COBRA election, your spouse’s employer may be required to extend an option to buy coverage in your old policy. You should contact your former spouse’s Personnel Department immediately following your divorce to comply with the law’s strict time requirements.
Should I Consider Redrafting My Will?
Absolutely. A divorce will significantly affect the ownership of your marital assets, and custody of your children. Subsequent to your divorce, you should discuss these issues with one of our attorneys who specialized in estates and estate planning.
You may also want to revise your Power of Attorney and/or Healthcare Proxy.
Can I Resume My Maiden Name?
Yes, you should advise your attorney during your initial consultation that you wish to resume your maiden name subsequent to the divorce. The name change shall be placed in the Final Judgment of Divorce.
