Ask the Divorce Expert

Divorces are always tricky, so if you’re getting one, it’s best to ask the advice of someone who has been through hundreds of them. John S. Eory of Stark & Stark is an experienced divorce lawyer and frequent contributor to various publications on the topic of divorce, and also blogs at the NJ Law Review answering such questions as “can a transgender minor legally change his or her name?” and “Are there alternatives to traditional divorce?”

Even if you’re a lawyer yourself, it helps to hear from the experts. Eory will give a presentation on “the taxing nature of divorce” at the Princeton Bar Association on Wednesday, May 30, at 12:30 p.m. at TPC Jasna Polana. For more information, visit www.princetonbarassociation.org.

In a recent article, Eory answered some common questions about divorce:

A number of years ago I was involved in a project titled “Ask the Experts,” which consisted of answering inquiries regarding divorce and other family law topics. A feature of this enterprise was that I occasionally had the opportunity write my own questions which I would then confidently answer. The format was so successful that I have decided to revive it and tackle some top misconceptions concerning New Jersey divorce law. Hopefully, you will find the following Q&A interesting in dispelling antiquated or nonexistent notions.

What is the role of marital fault in a divorce? Simply stated, the answer is “in almost all cases, none.” For example, the majority of divorces are procured under one of New Jersey’s two “no-fault” grounds: irreconcilable differences or (less often) 18 months of separation, since most people don’t want to air out their dirty laundry in public.

Secondly, the commission of marital fault (most often adultery, desertion or extreme cruelty) has no bearing on alimony, much less child support. There are a handful of cases in which egregious fault has been considered, such as the hiring of a hitman to unsuccessfully murder one’s spouse followed by a claim for alimony, but such cases are few and far between. On the other hand, no court is shocked by the commission of adultery no matter how wrenching and destructive such behavior was to the marriage.

Finally, New Jersey law is clear that marital fault has no place with respect to the division of marital assets known as equitable distribution. This often comes as a surprise to new clients due to the common perception that marital wrongdoing still matters.

When is a child considered emancipated? Unlike many other states, New Jersey does not consider a child emancipated upon reaching the age of 18 or graduating from high school, whichever last occurs. On the contrary, as long as the child pursues a full-time college or vocational education following high school graduation, he or she is considered unemancipated and therefore entitled to be supported by his or her divorced parents, including payment of college expenses.

An important legal distinction is that children of non-divorced parents have no such right; that is, the parents can simply tell the child, “You’re on your own”. The reason for this difference is because the law has no interest in regulating the conduct of intact families whereas in the case of divorced parents, the law does have an interest in ensuring that the child is not cast aside as fallout from his or her parents’ divorce.

Although New Jersey is not the majority position with respect to children of divorced parents who have reached the age of majority, this aspect of the law is unlikely to change in the foreseeable future despite recurring efforts otherwise.

Can a divorced parent move from New Jersey with his or her children? New Jersey does not apply a “best interests of the child” or “for good cause” test with regard to relocation by divorced custodial parents. Instead, during the past three decades the law has evolved to a liberal standard whereby a divorced custodial parent is allowed to move from New Jersey to another jurisdiction as long as he or she can demonstrate a good faith reason and the move is not inimical to the child.

Frankly, this is not an onerous burden compared to other standards, such as the “best interests” test mentioned above. That being said, such matters are decided on a case-by-case basis. The important point is that unless and until there is a change in the law, divorced custodial parents will continue to have an easier time seeking relocation than in other states.

What are “grandparents’ rights”? A common misconception is the parents of divorced persons have a set of rights with respect to their grandchildren. Simply stated, the law will leave such matters as grandparental contact to the parents except in extraordinary circumstances. An example could be where a grandparent was so actively involved in raising the child that a psychological bond was created which, if undermined, would be detrimental to the child.

Moreover, grandparents are unlikely to obtain visitation (now called parenting time) except derivatively through their son or daughter’s time with the child. While these policies may appear indifferent or disrespectful of the role grandparents play in children’s lives, they derive from the law’s long-standing deference to the right of parents to raise their children as they see fit.

Who pays for the divorce? Although a financial disparity often exists between divorcing parties, this does not translate to the more financially solvent party’s payment of the other party’s attorney’s fees and costs. Under New Jersey law, divorce cases must be billed on an hourly basis, as opposed to other models such as a contingency fee, under which the lawyer receives a percentage of the recovery.

Among the rationales for this requirement is that divorce attorneys should strive toward resolution and settlement as opposed to fomenting litigation in order to potentially obtain higher recoveries and larger fees.

That being said, the hourly rate requirement does not mean that each party simply pays his or her own fees in a divorce case. Instead, the law has established a set of enumerated factors, including the division of marital assets and payment or receipt of alimony, as well as the good faith (or lack thereof) demonstrated by both parties during the proceedings. Other than for an award of fees obtained in accordance with this process, each party is responsible for their own counsel fees, costs, and out-of-pocket expenses incident to the divorce.

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