New Jersey Divorce Process

July 22, 2014

New Jersey Divorce Attorney Fees – Bad Faith, Lack of Money as Criteria for an Award

One of the most unsettling question marks in a divorce case is the cost of attorney fees. In an uncontested case the fees can usually be fixed as a flat fee. However, in a contested case the fees are usually billed at an hourly rate. Why the difference?

In an uncontested case your spouse does not contest the proceedings, so your lawyer can estimate how much time it will take to complete your side of the divorce based on their prior experience, i.e., the lawyer can predict how much time they will spend to get your matter finalized.

In a contested case your spouse contests the proceedings, so your lawyer cannot predict how long it will take for your case to be finalized. Your spouse may agree to everything that you propose on or before your first court date. Or your spouse may fight every settlement proposal and take unreasonable positions on every issue. A contested case may be resolved after one court appearance, or the case may not resolve even after multiple court appearances and numerous court filings. A contested case may not settle at any point, and may have to be tried in front of a judge. Because of the unpredictability of a contested case lawyers set hourly rates for their work in these cases.

Can I Make My Spouse Pay My Attorney Fees?

In an uncontested case the court will generally not award attorney’s fees against the non-contesting party. However, in a contested case there are a few situations in which the court may make your spouse pay or contribute to your attorney fees. The top two reasons that a court may award counsel fees are either a parties bad faith and/or a parties lack of money,

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July 7, 2014

Keeping Health Insurance After A New Jersey Divorce – COBRA

by Brian D. Iton

While you are married you can be covered under your spouse’s health insurance because of your legal status as their husband or wife. If a divorce is commenced, during the divorce, you can maintain the health insurance because until the judgement of divorce is granted you are still husband and wife. In fact, at the time that the complaint for divorce is filed the filer must fill out and submit an insurance affidavit which lists all of the active insurance that is in effect, including health insurance. As well, the filer must state in the affidavit that they have not canceled or otherwise modified that insurance within 90 days of filing. However, once the divorce judgment is granted you are no longer husband and wife and you lose the married status for purposes of health insurance coverage. It is actually insurance fraud if you keep your spouse on your health insurance plan as your spouse after your divorce is finalized. Continue reading →

June 12, 2014

Name Change During a Divorce In New Jersey

by Brian D. Iton

The New Jersey family courts make it very simple for a wife to resume her maiden name at the conclusion of her divorce case. In order to take advantage of the opportunity for a name change the wife should make the name change request in her complaint or counterclaim for divorce. Once she makes the request in her initial pleading the wife does not have to address the name change issue again until the day that the final divorce is entered.

On the day of the divorce the court will require the name that the wife is intending to resume, her social security number (last 4 digits), and her date of birth. Either the court or the wife’s attorney will ask the wife a series of questions related to the reasons why she is requesting the name change. The questions are generally along the following lines:

1. Do you have any civil judgments or pending civil judgments against you in your married name?

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May 7, 2014

The New Jersey Divorce Complaint and Marital Fault – Why You May Want To Exercise Discretion

by Brian D. Iton

The Purpose of the Divorce Complaint

The divorce complaint is the initial document filed and served in the divorce process. It is filed with the court and then served on your spouse. The primary purpose of the complaint is to let the defendant (your spouse) and the court know why you want the divorce, i.e., what grounds or basis you have for the divorce.

Traditionally there were 9 bases for filing for divorce in New Jersey:

1. Adultery

2. Willful and Continued Desertion for 12 or more months

3. Extreme Cruelty

4. 18 Months Separation

5. Desertion

6. Voluntarily induced addiction or habituation to any narcotic drug as defined in the New Jersey Controlled Dangerous Substances Act. or habitual drunkenness for a period of 12 or more consecutive months Continue reading →

April 12, 2014

Marital Settlement Agreements in New Jersey – What Does The Court Require

by Brian D. Iton

The overwhelming majority of New Jersey divorce cases end up settling on or before the trial date assigned by the Court. There is no set date for settlement. Some couples work out their issues very early on (before they even file divorce papers). Other couples spend a year (or more in some counties) battling in court before they settle their issues. A tiny minority of couples actually begin a trial of their cases, and a smaller minority try their cases to conclusion – at which time the Judge decides the unresolved issues in the case.

An Interspousal Child Custody, Child Support, and Marital Settlement Agreement, commonly referred to as an MSA or Property Settlement Agreement (PSA) is a written agreement that covers all of the issues that should be dealt with in a divorce. The language of the Agreement is crucial as the words used define the parties’ rights moving forward after the divorce. The New Jersey courts allow the parties to a divorce to fashion their own written settlement agreement, and if both parties sign it, the court will literally attach it to the Judgment of Divorce so that the agreement becomes part of the Judgment of Divorce. In future blog posts I will discuss the individual sections of a standard MSA in detail.

The Court’s Involvement When There Are No Children

If there are no children, the courts will not do an in-depth review of the details of the agreement. However, if there is a waiver of alimony the court will question whether the person waiving alimony understands that the waiver is final, and whether the person waiving can maintain a lifestyle comparable to the marital lifestyle post-divorce without alimony. The court’s focus will be on getting testimony from the parties that

Both parties think that the agreement is fair and reasonable.

Both parties feel that the Marital Settlement Agreement was voluntarily executed by both parties, without threats or any form of coercion being exerted on either party.

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