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Navigate to: Alimony | Arbitration | Child Custody | Child Support | Collaborative Law | Divorce | Equitable Distribution | Mediation | Municipal | Post-Divorce Matters | Prenuptial, Reconciliation or Mid-Marriage Agreements | Restraining Orders

Once a spouse makes the decision to seek a divorce from the other spouse, it is also important to understand what will be involved in "getting divorced." Other than dissolving the bonds of matrimony, the following major issues will be determined in a divorce:

1. Custody and parenting time - determination of legal and residential custody and allocation of parenting time to each parent

2. Income Determination - this may include imputation of income where a spouse is unemployed or underemployed

3. Child Support - determination of the amount of support for the child, payable by one parent to the other, generally received by the parent with whom the children reside

4. Alimony/Spousal Support - the determination of payment of alimony from one spouse to the other (if applicable)

5. Equitable distribution - division of all assets and debts acquired during the marriage and determination of any assets which may be exempt from distribution.

Spouses should know that there are multiple ways to dissolve a marriage. Divorce can be achieved by way of litigation, mediation, collaboration and arbitration. The professionals at Maleski, Eisenhut & Zielinski, LLC are available to assist in each method and can help select the most appropriate for the individual circumstances.

Any two spouses can amicably resolve their divorce and any sub issues or post-divorce issues. Some spouses can discuss issues and arrive at a solution acceptable to both. Most spouses will need to, at minimum, consult with an attorney to ensure that they are educated about New Jersey divorce law and the implications and effects or their agreements, actions, or non-actions.

Most often, when seeking amicable resolution, spouses will elect what are referred to as "alternate dispute resolution methods." The most common forms of amicable resolution are collaborative divorce and mediation. Alternatively, parties can retain attorneys and hold settlement discussions without entering into either of these processes. Any divorce can be resolved if both parties are willing to cooperate, share information and be willing to work together to reach a reasonable resolution of the pertinent issues which face their family. This may involve compromise.

Below we discuss Collaborative Divorce and Mediation. Many of the attorneys at Maleski Eisenhut & Zielinski, LLC are trained mediators and trained collaborative divorce attorneys.
 
Collaboration or Collaborative Divorce

This is the newest alternate dispute resolution process in divorce. This process seeks to divorce spouses with a minimum of negative economic, social and emotional consequences to the parties and family. Collaborative law utilizes a team approach to resolve all divorce issues including custody, parenting time, child support, spousal support or alimony and distribution of assets and debts. Spouses may choose to retain collaboratively trained financial experts and mental health experts to assist them in creating options for resolution. Mental health coaches may assist the parties in effective communication and expression of ideas. They may act as a voice for the children to help create a custody and parenting plan.  These professionals work for both parties. If necessary, these professionals also participate in conferences with the parties and their attorneys to enhance progress toward resolution.

In the collaborative process, each spouse retains a collaboratively trained attorney to advocate for his or her interests. The parties and their attorneys sign a “participation agreement” which commits them to working together to derive the best resolution for them and their children, without resorting to litigation.  Should either party seek to commence litigation, both parties must terminate the process and their collaborative attorneys must withdraw from representation. Both parties will then have to retain new lawyers to represent them in the litigation process. Moreover, if the process is unsuccessful, the parties' discussions, partial agreements or positions, and any document produced in the collaborative process are excluded and inadmissible in the litigation setting.

Conferences are held with both parties and their attorneys present, as well as any other professionals that may be necessary to assist resolution. This avoids the cost of letters and telephone calls as well as mandatory court appearances, written submissions and a costly exchange of formal discovery. The parties are encouraged to communicate effectively throughout the divorce process so that the family can maintain a healthy relationship after the divorce.

The timetable of a collaborative divorce is controlled entirely by the parties. There are no mandatory court appearances and court submissions, keeping the process private. The parties can direct the speed at which the divorce proceeds without penalties.  For this reason, collaborative divorce tends to be less costly than litigation.

Click here be directed to the International Academy of Collaborative Professionals website for additional detailed information about Collaborative Law.

Mediation

Spouses can agree to retain a mediator to act as a third-party neutral to assist them in resolving issues in the divorce. Although the mediator does not need to be an attorney, an attorney experienced in matrimonial and family law is best equipped to promote a thorough resolution. The mediator can provide legal information, the mediator is not an advocate for either party and cannot give advice to either party, for example, on the legal ramifications of a potential agreement. Therefore, it is critical for spouses retaining a mediator to also consult with a divorce attorney to either assist during the mediation process, or at minimum, to review all agreements discussed in mediation before any formal agreement is signed.

The goal of mediation is to facilitate communication between spouses and assist them in creating realistic and constructive options and solutions for resolution of the disputed issues in accord with their circumstances. The discussions held during mediation are confidential and generally not admissible in court proceedings, offering spouses a level of privacy not available in court litigation. An effective mediator will balance power inequities between parties and facilitate a respectful approach to problem resolution. Mediation also tends to be less costly than litigation.

Mediation also can be utilized within the litigation process either with the attorneys and parties or the parties alone, on some or all issues. If mediation fails, the parties can arbitrate, commence or continue litigation or enter into the collaborative divorce process. 

Click here to be directed to the New Jersey Association of Professional Mediators for more extensive information about mediation. The attorneys at Maleski, Eisenhut & Zielinski are trained family law mediators and have successfully mediated many divorce and family law matters.

Custody in New Jersey has two aspects: "legal custody" and "residential custody." Legal Custody is the responsibility for major decisions in the child's life, such as health, education and general welfare of the child. Most often courts designate, or both parties will agree that, the parents are "joint legal custodians" and the parents will be vested with "joint legal custody." This means that both parents have equal and joint rights to the major decisions relating to the child and the parents must decide on these major issues jointly. The alternative is sole legal custody to one parent or party, which is appropriate in some cases.

Residential (Physical) Custody pertains to the actual physical custody of and parenting time with, the child. The parent who is currently exercising physical custody of a child generally has the responsibility for the day-to-day decisions that occur during their parenting time. This includes decisions such as preparation of food and clothing, transportation to school and events, meal time bed time, and other daily decisions as they arise.

Some parental situations call for "joint residential or physical custody."  This means that the child spends approximately equal time each year with both parents. Examples of parenting time under this schedule may include: every other week with each parent; Monday and Tuesday each week with one parent, Wednesday and Thursday each week with the other parent, and alternating Friday through Sunday. These are just examples. The actual schedules vary from family to family depending on their circumstances.

Often, one parent will have more parenting time with the child than the other parent in any given year. This parent is considered the "primary caretaker" and the other parent is considered the "secondary caretaker." The primary caretaker is the parent who is most often and most frequently responsible for: preparing and planning of meals; bathing, grooming, and dressing; purchasing, cleaning, and caring for clothes; medical care, including nursing and trips to physicians; arranging for social interaction among peers; arranging alternative care, i.e., babysitting or daycare; putting a child to bed at night, attending to a child in the middle of the night, and waking a child in the morning; disciplining; and educating the child in a religious or cultural manner. Examples of parenting time to the secondary caretaker may include: Every other weekend Friday through Monday morning, and an additional overnight during the week. There is no "set" parenting time schedule; schedules vary from one family to another and depend on that family's responsibilities and needs.

When parents are unable to agree on the terms of a custody arrangement, they may retain a joint or individual custody expert, generally a psychologist versed in child custody issues. The expert undertakes a custody evaluation and issues a report with recommendations on legal and physical custody.  If the parties are unable to resolve the issues after a report or reports, the matter will proceed to a custody trial before a judge.   Alternatively, parties can agree to submit the issue of custody to be decided by an arbitrator.

Click here for an article on Child Custody prepared by Maleski Eisenhut & Zielinski, LLC which appeared in the April/May 2010 edition of Hunterdon County Woman Magazine.

What is child support?

In New Jersey, child support operates to ensure that children are not the economic victims of divorce or out-of-wedlock birth. A child support obligation continues until the child becomes emancipated. In many cases, this can extend past the child's 18th birthday. It may include contribution toward college expenses. While the primary custodial parent usually receives this support, in some situations the parent who does not have custody of the child the majority of the time may be entitled to receive child support.

How is child support collected?

Child support may be paid directly or collected by The New Jersey Support Center through a local Probation office. Child support can be garnished automatically from the paycheck of a parent to ensure timely payment. The duties of the Probation Office include documenting late payments, tracking arrears and initiating collection proceedings to bring a non-paying parent before a Judge. However, parties can agree to make the payments directly and to not utilize the Probation Office.

How is child support calculated?

For parents with combined net income up to $3,600 per week, the court approved formula for calculating child support is built into the Child Support Guidelines. The formula uses a variety of factors such as the income of each parent, the time each parent spends with the child, mandatory retirement contributions, the cost of health insurance premiums for the child and several other factors. For those with combined weekly net income above $3,600, the New Jersey statutory factors are applied in consideration of the needs of the child, the standard of living, the income and assets of the child, and numerous other statutory factors.

When is child support reviewed?

Parents may be entitled to have their child support obligation reviewed by a court when a variety of factors in the Child Support Guidelines change. Recipients of child support may receive periodic increases to support based on increases to the cost of living. A permanent and significant change in income may be grounds for a modification of child support. Examples are an increase or decrease in salary, or a protracted period of unemployment despite a diligent job search. As well, if the parents change the parenting schedule after child support is calculated, a modification may be appropriate.

What happens when someone willfully leaves their current employment?

Generally speaking, parents are expected to work full time. In situations where a parent is not earning at this level, the court may calculate child support based on imputed earnings. Imputed income is the income a court believes a parent reasonably should earn, given their background, education, work history and training.

Can child support be modified retroactive to past significant change in circumstances?

Courts are often unable to grant a retroactive modification of support. Therefore, a parent who believes the child support amount is no longer accurate should apply immediately to the Court for a modification.

Can a child enrolled in college still receive support?

New Jersey is one of the few states that may require separated parents to contribute toward the post-secondary education for their children. This may be college, vocational school, specialized job training programs and even graduate school. The courts analyze a variety of factors to determine if such contributions from the parents are necessary. The factors include those spelled out in the New Jersey statute and a case entitled Newburgh v. Arrigo, 88 N.J. 529, 545 (1982), such as whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education and the effect of the background, values and goals of the parent on the reasonableness of the expectation of child for higher education. A child may be required to apply for all available financial aid prior to seeking additional aid from the parents. Given the potential expense, parents are encouraged to come to a negotiated agreement regarding the issue of college contribution in order to carefully delineate the financial responsibility of both parents.

Parents may be required to pay support for their children attending college. Commonly, child support is calculated by examining the budget of the child. However, when a child commutes to college and lives at home, child support may continue as calculated using the Child Support Guidelines.

Should I hire an attorney?

Given the potential for complex legal issues surrounding child support, parents should consider obtaining legal representation when they attempt to establish a child support obligation or modify an existing obligation. At Maleski, Eisenhut & Zielinski, LLC, our attorneys are experienced family law practitioners who can guide you through the system.

Contact Maleski, Eisenhut & Zielinski, LLC at 908-237-9711 or online for help in understanding child support.

In New Jersey, there are several different forms of spousal support, also referred to as alimony. These include: open duration alimony, limited duration alimony, rehabilitative alimony and reimbursement alimony.

Open Duration Alimony - This form of alimony continues for an indefinite period of time, but does not necessarily last forever.  Absent exceptional circumstances, it is only available for marriages in excess of 20 years. It is generally appropriate for marriages which are considered "long term" and where one spouse is unable to earn income which is similar to that of the other spouse to maintain the lifestyle of the marriage. What is defined as "long term" is determined by a number of characteristics of the marriage. Although alimony continues for an indefinite period of time, a substantial change, such as retirement at the age where full Social Security retirement benefits are available, may be a basis to change or terminate the payment of alimony.

Limited Duration Alimony - This form of alimony is paid for a specified period of time. Unless there are exceptional circumstances, limited duration alimony is generally appropriate for marriages which are less than 20 years but where one spouse is unable to earn income which is similar to that of the other spouse.

Rehabilitative Alimony -  The purpose of rehabilitative alimony is to allow one spouse to gain education or experience which will enable that spouse to increase his or her earning power. It is generally short in duration. Rehabilitative alimony may be awarded together with limited duration alimony open durational.

Reimbursement Alimony - The goal of reimbursement alimony is to reimburse one spouse if that spouse supported the other spouse through an advanced education, with anticipation of participating in the fruits of the earning capacity generated by that education.

In New Jersey the type of alimony depends on your particular circumstances. The attorneys at Maleski Eisenhut & Zielinski, LLC can discuss with you the additional policy reasons the type of alimony that may be applicable in your situation.

The allocation of assets and debt in New Jersey is called "equitable distribution." It is important to note that equitable does not mean equal; it means fair.  Generally assets and debt, which are subject to division are those that were acquired during the marriage. Sometimes, however, assets that are acquired during the marriage may not be divisible; rather they may be exempt from distribution.  This may be applicable where an inheritance or gift is received by one spouse and that asset is maintained separately by that spouse during the marriage, and not commingled. If you think that you may have an asset which is exempt, it is important to speak to an attorney to verify and ascertain whether your belief is accurate as the analysis is fact sensitive.

Generally, assets and debt acquired prior to the marriage are exempt from division. However, there are situations where those assets may be commingled or may otherwise be transmuted to marital assets to lose their exempt nature. This depends on the circumstances, and a spouse should consult with an attorney to obtain independent and fact specific legal advice.

Prenuptial Agreements, Reconciliation Agreements and Mid-Marriage Agreements

Prenuptial, reconciliation and mid-marriage agreements must meet specific requirements to be held enforceable. Therefore, if you are contemplating entering into one of the above agreements, you should consult with an attorney. Likewise, if you entered into one of the above agreements and are considering divorce, you should consult with an attorney to help you determine the effect of such an agreement on your finances.  The attorneys at Maleski Eisenhut & Zielinski, LLC are especially qualified to both draft and review prenuptial agreements, reconciliation agreements and mid-marriage agreements.

Prenuptial or Premarital Agreements

Before marriage, you can choose to agree on spousal support (alimony) and distribution of property in the event of a divorce. This is referred to as a prenuptial or premarital agreement. Under New Jersey law, a premarital agreement must comply with certain requirements and a certain exchange of information before the agreement is signed. To ensure the enforcement of the premarital agreement, both parties must comply with these requirements. Otherwise, the prenuptial agreement may be held unenforceable and therefore void.

Reconciliation agreements

Reconciliation agreements are entered into by married spouses during a substantial marital rift, possibly even after a complaint for divorce has been filed or the parties separate physically. These contracts entail agreements between spouses, generally as to finances and assets, which are made in exchange for the promise to resume marital relations. For a reconciliation agreement to be enforceable, the circumstances under which the agreement was entered must have been fair, the terms of the agreement must have been conscionable when the agreement was made, and other requirements must have been met.

Mid-Marriage Agreements

Mid-marriage agreements differ from reconciliation agreements in that they are entered into by married spouses before the marriage loses all of its vitality. In these situations, since an opportunity exists for one spouse to position him or herself in an advantageous bargaining position, New Jersey courts closely scrutinize such a contract.

Many of these agreements must meet requirements to be enforced by the court. The attorneys at Maleski, Eisenhut & Zielinski, LLC are able to draft these types of agreements.

What are Restraining Orders and How do They Work?

Restraining Orders are meant to protect victims of domestic violence from those who have committed an act of domestic violence. Offenses that form the basis of a Restraining Order frequently are harassment and assault, but may also include homicide, terroristic threats, kidnapping, criminal restraint, false imprisonment, sexual assault, criminal sexual contact, lewdness, criminal mischief, burglary, criminal trespass and stalking.

A party frequently applies to the court or to the police who direct the party to a judge. The judge then determines if a Temporary Restraining Order (TRO) is warranted. If so, the Defendant is served with the TRO and, if the parties resided together, removed from the residence. Simultaneously, other financial relief may be temporarily granted, until the final hearing. A final hearing normally takes place within ten days. The court takes testimony and reviews exhibits. Separate criminal actions may be filed in the municipal or Superior Court Criminal Part based on the same incidents of domestic violence.

Courts have held that arguments between spouses in the midst of a divorce are merely "domestic contretemps" and do not rise to the level that require a restraining order. However, each case is fact sensitive. Any history of domestic violence between the parties may be admitted into evidence.  Credibility is frequently an issue.

If the court finds that an act of domestic violence was committed and that a Final Restraining Order is warranted, the offending party is barred from direct or indirect communication with the victim, and possibly other family members, under penalty of further charges and incarceration. Other relief is available in the form of support, custody, parenting time and counsel fees.

If a person feels threatened because of actions or communication made by a spouse or significant other, or other member of a family, the threatened person should contact the police for instruction. Victims of domestic violence frequently make a record of written or spoken communications from the aggressor to support the claim. Local support groups, such as SAFE in Hunterdon ( https://safeinhunterdon.org/ ) provides counseling and advice. Most counties have a domestic violence support group.

Final Restraining Orders can complicate divorce proceedings and may result in increased counsel fees, in part because all communication must be made through counsel when a party is prohibited from contact to the other. Still, a victim of domestic violence should consult with an attorney to find out how to best proceed and protect themselves and their family.

Parties should never use a restraining order as a weapon to gain advantage in a divorce or to remove a spouse from the marital residence without just cause. This is an abuse of judicial resources.

In a stressful situation where there are resources or alternative living arrangements, and if the safety of the parties is not at risk, an appropriate remedy may be civil restraints. The parties enter into a consent order in the divorce litigation wherein the parties agree on limited communication except as provided in the agreement. However, civil restraints do not carry the same level of protection to a victim as a restraining order. For example, they do not provide for police response to a violation. The violation of a restraining order will result in the aggressor's arrest and possible jail time. In contrast, a violation of a civil order for restraints must be brought to the court's attention by filing a motion. Thus, violations of civil restraints may result in non-criminal punishment such as a monetary sanction or other civil relief.

Post- Judgment Action

Sometimes after their divorce, parties encounter difficulties that require legal intervention. These are referred to as "post-judgment" issues. Sometimes, one party is not complying with the Agreement, so the other seeks to enforce it and obtain compliance; or circumstances have changed for one or both spouses and one or both spouses may seek modification of child support or alimony.

Post judgment problems can be resolved with the aid of attorneys. However, sometimes further action may be required to resolve these problems. Parties may choose to attend mediation or return to the collaborative process. Others may choose to proceed with an application to the court. Often times post-judgment issues will be determined by the court once an application is made, but sometimes the court will require that a hearing or trial be held to address the issues.

When seeking a review of child support or alimony, the party asking for this relief is required to prove to the court a permanent and substantial change in his or her circumstances. If you anticipate that you will need to make any post-judgment application to the court, you should take time to meet with an attorney who can explain to you the implications and requirements of such an application.

Contact Maleski, Eisenhut & Zielinski, LLC at 908-237-9711 or online for questions related to Municipal matters.

Arbitration is another form of dispute resolution. It is a voluntary process, like mediation and collaboration. Both parties must elect to arbitrate.

The arbitrator, generally a private attorney, acts as judge and charges an hourly rate. Evidence and legal argument is presented to the arbitrator by the parties involved (or their counsel if they are represented) in a fashion very similar to that of a trial. It takes place in the office of the arbitrator or an agreed upon location. The arbitrator rules on the issues. The rules of evidence applicable in a court setting may be relaxed by consent to allow the arbitrator to review and consider evidence, which would normally not be admissible at trial. The arbitrator is expected to render a decision on all issues and provide a full explanation based on the relevant statutory law and case law.  Alternatively, the parties can consent to a more abbreviated ruling.

Parties can agree to enter into a binding or non-binding arbitration. When parties agree to participate in binding arbitration, they agree to accept the arbitrator's decision, whatever the result may be. Although possible, it is difficult to obtain relief from a binding arbitration decision unless fraud is involved. Parties attending arbitration frequently seek closure and so choose binding arbitration.

Arbitration tends to be more costly than mediation because the process requires the formality of presenting evidence, legal argument and briefs. The arbitrator is paid. The proceedings may be recorded, and a formal written opinion issued by the arbitrator.  However, arbitration may proceed much faster and more efficiently than a trial before a judge when schedules permit continuous days of testimony. The court's calendar frequently prevents continuous (back to back) trial days.