Knowing What to Expect and How to Proceed With Your Divorce Can Make All the Difference
Our firm handles a significant number of divorces every year. In the course of our representation, certain question seem to get asked all the time. Below is a list of the 10 most commonly asked questions and the most common answers to the questions. Can one lawyer represent both parties? No. Lawyers have an obligation to provide unbiased representation advocacy for their client. By representing both parties the lawyer's ability to give unbiased advocacy is compromised. This should not be confused with mediation. In a mediation, the mediator does not provide legal advice to either party, rather the mediator explores ways to help the parties resolve their disputes. How long will it take to get my divorce completed? There is no cooling off period or waiting in a “for cause” divorce in New Jersey. Irreconcilable differences is a “for cause.” In most cases, the time it takes get divorced is controlled by how long it takes to come to an agreement as to the terms of the divorce. If you and your spouse have already resolved your divorce and have a signed settlement agreement, then your divorce can be finalized as few as thirty (30) days. How much will my divorce cost? Unfortunately, there's no easy answer to this question. Nearly all matrimonial lawyers charge on an hourly basis. This leads to the obvious question, “how many hours will it take my attorney to complete my divorce?” Every divorce is different and has different issues. If your divorce involves alimony, valuing a closely held business, or disputes over custody, then you should anticipate a greater cost for the divorce. Most attorneys can give you a decent approximation after the initial consultation. Can I change the judge in my case? Only a very limited amount of circumstances can a litigant change the judge. This requires a showing that the judge has a bias or a conflict of interest. It is not enough that he did not like a decision of the judge or the judge may have made a reversible error in your case. In order to have a judge rescued, a formal motion must be filed. Can I get alimony or spousal support before my case is finalized? Yes. Support that is awarded prior to the entry of a final judgment of divorce is referred to as pendente lite alimony or spousal support. The literal Latin translation for pendente lite is “while the litigation is pending.” In order to obtain pendente lite alimony or spousal support, a motion must be filed with the court. The motion must refer to the statutory alimony factors and demonstrate genuine need for the support while the litigation is ongoing. Can the court force my spouse to return to work? No. However, the court does have the ability to impute income to a spouse who chooses not to work. This is called imputation of income. If a court imputes income to party, the imputed income amount will be used when determining alimony and calculating child support. If the court imputes income to one party or the other party will not be harmed financially with alimony or child support. Many times a vocational expert is used to determine a parties earning ability and the proper level of imputation of income. Can I stop the divorce? No. In New Jersey, if either party to a marriage wants to be divorced there is very little to nothing the other party can do to ultimately prevent the divorce. It is true that a spouse that does not want to get divorce can make the divorce process more difficult. However, if one party can truthfully testify that there has been a breakdown of the marriage for at least six months, they eventually will be granted a divorce. Do both parties have to appear in court to have their divorce finalized? No. If the parties have a signed and notarized property settlement agreement, then the divorce proceeds uncontested. In this situation, only one party is required be present in court to have a final judgment of divorce entered. What happens if my spouse and I have a “prenup”? The first issue your lawyer will want to determine is whether the prenuptial agreement is valid and enforceable. While there are many reasons that may invalidate a prenuptial agreement, the two most common causes for prenup to be invalidated are: 1) a lack of a full financial disclosure, or 2) terms to the prenuptial agreement that are unconscionable. If you and your spouse have a “prenup,” you will certainly want to consult with a lawyer. Ultimately, if the prenuptial agreement is valid it may make the litigation simpler, quicker, and less expensive. Is my spouse entitled to a portion of my inheritance? Generally, the answer to this question is “no.” However, there are exceptions to this rule. If one party receives money from an inheritance and the money is co-mingled, that may be subject to equitable division. the easiest way to co-mingle money is to have it placed in a joint account. Additionally, how an inheritance is used may give rise to the inheritance being distributed as part of the divorce. Conclusion The above list is not exhaustive. If you or someone you know is considering seeking a divorce in New Jersey, please contact the family law attorneys at DeMichele & DeMichele online today. Your confidential initial consultation is only a phone call away: (856) 546-1350.