Courts determine alimony with a set of guidelines or a formula: FALSE A court will determine alimony by reviewing the facts of a given case in conjunction with New Jersey's alimony law and its 13 factors. While parties can privately agree in a settlement to calculate alimony however they deem appropriate, a court's use of any specific formula has been previously rejected by the Appellate Division. While there is talk of alimony reform, which may include a formulaic approach as to the amount and duration of alimony, it is not the law at this time.
Permanent alimony is always permanent: FALSE Permanent alimony may end or be modified for a variety of reasons based on a given set of circumstances including, but not limited to, the death of either party, a supported spouse's remarriage or cohabitation, or a payor spouse's retirement, job loss or income decline.
A parent can waive his or her right to child support: FALSE The right to child support belongs to the child, not to the parent. Thus, while parents may agree in a settlement agreement that there will be no child support, ultimately a court will have to determine what is in the best interests of the child should an issue later arise.
All assets are divided equally in equitable distribution: FALSE Similar to alimony, there is no specific formula for equitably distributing an asset. Rather, the law provides a court with 16 factors to consider, including but not limited to income and property brought to the marriage by both parties; the contribution of each party to the acquisition, dissipation, preservation, depreciation or appreciation in the amount or value of the marital property, as well as the contribution of a party as a homemaker; the tax consequences of the proposed distribution to each party; and the present value of the property. While there is often a knee-jerk reaction to equally divide all assets, this may not be appropriate given the facts and circumstances of the case. Moreover, businesses are rarely divided equally.
Most cases go to trial: FALSE In fact, more than 98 percent of cases settle before trial. The court system strongly encourages privately negotiated settlements between parties by requiring that the parties engage in custody and parenting time mediation; the Early Settlement Panel; economic mediation; and intensive settlement conferences before trial.
Legal separation exists in New Jersey: FALSE While this exists in other states, including New York, there is no legal form of separation in New Jersey. The closest form of legal separation is known as a divorce from "bed and board," otherwise known as a "limited divorce." A divorce from bed and board means that two spouses have obtained a divorce from a financial standpoint, involving a distribution of assets and determination of support, but are still legally married. As the parties are still legally married, they can then later reconcile, apply for a revocation or suspension of the Judgment of Divorce or, should no reconciliation occur, may apply to the court for a conversion of the divorce from bed and board to that of a standard divorce "from the bounds of matrimony." However, the date of a divorce complaint provides a cut-off date for the length of the marriage and for the inclusion of assets and debts of the marital estate.
There is no obligation to pay for college: FALSE Parents in New Jersey have an obligation to pay for a child's college education and related expenses. The law requires that a court consider several factors when determining a party's obligation to contribute to college expenses including, but not limited to, whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education; the amount of the contribution sought by the child for the cost of higher education; the ability of the parent to pay that cost; and the relationship of the requested contribution to the kind of school or course of study sought by the child.
A palimony agreement does not need to be in writing for it to be enforceable: FALSE In 2010, New Jersey passed a law requiring that all palimony agreements be in writing in order for them to be enforceable. Palimony is a promise by one party to support the other party in a non-marital personal relationship, either during the course of the relationship or after its end. In the recent decision of Maeker v. Ross, in which this firm represented the successful party, the Superior Court of New Jersey, Appellate Division, determined that a party's right to palimony does not actually exist until the end of the relationship.
You can provide for child support and child custody in premarital agreements: FALSE Provisions regarding child support and child custody in premarital agreements are void as a matter of public policy.
Domestic violence requires physical violence: FALSE Domestic violence can include conduct that does not involve physical violence, such as harassment, stalking, threats of violence or placing someone in a situation where he or she fears for their safety. It could even include having a GPS tracking device placed on a vehicle or a recording device placed in a bedroom.
The enforceability of a premarital agreement is determined at the time the agreement is signed: FALSE Pursuant to New Jersey's premarital agreement law, a premarital agreement will not be enforceable if the party seeking to set aside the agreement proves he or she executed the agreement involuntarily or the agreement was unconscionable either at the time of execution, or at the time enforcement was sought. A prenuptial agreement will also not be enforced if, prior to the execution of the agreement, a party: (1) was not provided full and fair disclosure of the earnings, property and financial obligations of the other party; (2) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; (3) did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party; or (4) did not consult with independent legal counsel, or did not voluntarily and expressly waive, in writing, the opportunity to consult with independent legal counsel.
Parties can enter into post-nuptial or mid-marriage agreements to resolve issues between them: TRUE AND FALSE While it is possible for parties to enter into such agreements, they are disfavored under New Jersey law and are difficult to enforce. It is possible that a reconciliation agreement, which is an agreement entered into when a significant event(s) placed the marriage at the precipice of divorce, could be enforceable under the law. However, even then the agreement must involve full disclosure, no sign of duress or coercion, and otherwise cannot be unconscionable.
The mother always gets custody of the children: FALSE The custody statute is a gender neutral statute and decisions regarding custody are based upon the best interests of the children in light of the 16 statutory factors. However, to the extent that one parent was a stay at home parent while the other parent worked full time, the stay at home parent may have a practical advantage when it comes to residential custody.
Joint residential custody is never granted, and the standard parenting plan is alternate weekends and one night per week for dinner: FALSE Shared parenting, defined as anything from 28 to 50 percent of the overnights, is becoming increasingly common. Much of the research relied upon by custody experts would suggest that as much time as possible with each of the parents is in the child's best interests. As such, alternate weekends, plus a dinner during the week is, quite often, the minimum amount of parenting time that the non-custodial parent will receive. It is not uncommon to see the non-custodial parent receiving four, five or six overnights in a two-week cycle, as long as it is logistically possible to make such a parenting plan work. While less common, even 50-50 parenting plans are possible.
If one spouse commits adultery, it can have a significant outcome on the case: FALSE While adultery is still an existing fault-based cause of action to obtain a divorce, it will rarely impact a case beyond the initial pleading. For adultery, or any other fault-based ground to impact support or equitable distribution, there must be "extreme fault," which is a rare occurrence. However, to the extent that one party used marital funds to further adultery, the other spouse would have a claim in equitable distribution for the money that was spent on this non-marital purpose.
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