Does New Jersey Require a Period of Separation Before Divorce?
If you are considering filing for divorce, continue reading to learn if New Jersey requires a period of separation before divorce.
The breakup of a marriage could entail complex emotional, financial, and legal considerations, which are unique to each family, but you don’t have to go through this painful process alone. At Feitlin, Youngman, Karas & Gerson, LLC in Glen Rock, our knowledgeable and skilled divorce lawyers have protected the rights of spouses for decades. If you’re facing a divorce, simply contact our dedicated Bergen County family lawyers so we can help work toward the most positive resolution possible.
We’ve handled many divorces for our clients, and we know that every family involved in a divorce is different. The legal and interpersonal dynamics of each situation need to be carefully assessed to determine the best possible legal strategy. Whether the approach is collaborative, cooperative, or adversarial, we bring a depth of professional experience and personal insight to each family law matter.
The type of divorce process you use can have a significant effect on your well-being and possibly the eventual result. We can assist with any option you choose, such as:
For all types of divorces, we strive to secure an outcome that helps you and your children move past a difficult time successfully.
What people commonly refer to as divorce is known legally as the “dissolution of marriage” under New Jersey law. The legal process to end a marriage involves a series of steps that may vary based on the complexity of the issues involved and the level of conflict between spouses.
To initiate a divorce in New Jersey, at least one of the parties must have been a bona fide resident of the state for a minimum of one year prior to filing the Complaint for Divorce. The only exception to this requirement is in cases where adultery is cited as the grounds for divorce, in which case there is no residency requirement.
New Jersey allows for both “no-fault” and “fault-based” divorces. In most cases, spouses opt for a no-fault divorce by alleging “irreconcilable differences.” These differences must have existed for at least six months prior to filing, and there must be no reasonable prospect of reconciliation. Alternatively, spouses who have lived separate and apart for 18 consecutive months without cohabitation may also file for no-fault divorce on the basis of separation.
Although less commonly pursued, New Jersey still permits fault-based divorce filings. Grounds for a fault-based divorce include extreme cruelty, desertion, addiction to drugs or alcohol, deviant sexual conduct, imprisonment for 18 months or more, institutionalization for mental illness, or adultery. While fault does not directly impact whether the divorce is granted, it may influence certain aspects of the divorce, such as alimony or child custody, depending on the circumstances.
After the divorce complaint is filed, the other spouse (the defendant) is formally served with the complaint and given an opportunity to respond. If the divorce is contested, the process may become significantly more involved. In such cases, both parties are required to complete and exchange a Case Information Statement (CIS), which provides a detailed overview of each party’s income, assets, liabilities, and expenses. This document is critical, as it provides the court with a financial snapshot to assist in determining equitable distribution, alimony, and child support.
The next phase is typically the discovery process, which may involve the exchange of financial records, interrogatories, depositions, and the use of forensic accountants or other experts to evaluate income, business interests, and assets. In highly contentious or high-net-worth divorces, discovery can be extensive and time-consuming.
Throughout the case, judges may order the parties to attend Early Settlement Panels (ESP) or engage in economic mediation. These efforts are intended to facilitate settlement by offering the parties an opportunity to resolve financial and custodial disputes without a trial. If disputes remain unresolved, the court will set a trial date.
It is important to understand that most divorce cases settle before reaching trial. However, if trial becomes necessary, it can span several days or even weeks, depending on the number and complexity of the issues. The trial will culminate in a final judgment of divorce, which includes binding rulings on property division, custody, alimony, and other contested issues.
The division of property is often one of the most contentious aspects of divorce. In New Jersey, the process is governed by the principle of equitable distribution, which means that marital assets and debts are divided in a manner the court deems fair, but not necessarily equal.
To understand equitable distribution, it’s essential to distinguish between marital property and separate property. Marital property generally includes all assets and debts acquired by either spouse during the marriage, regardless of whose name appears on the title or account. This may include real estate, bank accounts, retirement accounts, vehicles, business interests, stock options, bonuses, and even frequent flyer miles or season tickets.
In contrast, separate property includes assets acquired by one spouse before the marriage, as well as gifts and inheritances received by one spouse individually during the marriage, provided those assets were kept separate and not commingled with marital property. However, in practice, the distinction between separate and marital property can become blurred. For example, if one spouse uses an inheritance to purchase a jointly titled home or deposits it into a shared account, the court may determine that the separate asset has been converted into marital property.
When spouses cannot reach an agreement on property division, the court will engage in a fact-sensitive analysis to determine what constitutes marital property and how it should be distributed. New Jersey courts evaluate a comprehensive list of statutory factors outlined in N.J.S.A. 2A:34-23.1. These factors include, but are not limited to:
It’s important to note that equitable distribution is not limited to tangible assets. Courts can and do divide complex financial instruments and business interests. If one or both spouses own a business, the court may need to determine the business’s value and decide whether it should be sold, one party bought out, or held with shared interests. This often requires a professional business valuation and testimony from experts in accounting or economics.
Debt is also equitably distributed. Marital debts, including credit card balances, mortgages, and loans, are typically divided according to the same fairness principles as assets. The court may consider who incurred the debt, who benefited from it, and who is better positioned to pay it off.
The court’s discretion in these matters is broad, and outcomes can vary significantly depending on the specifics of the case. For this reason, effective legal representation is critical. A skilled divorce attorney can ensure that assets are properly identified and valued, that separate property claims are properly preserved, and that a compelling case is made for a favorable division of property.
Additionally, spouses often overlook the long-term financial impact of property division. Receiving the marital home, for example, may come with substantial carrying costs, while transferring retirement assets without following proper procedures may trigger significant tax penalties.
Feitlin, Youngman, Karas & Gerson, LLC handles divorces and related family law proceedings for clients throughout New Jersey. To set up a consultation with our experienced Bergen County divorce lawyers, simply contact our firm today. We stand ready to effectively represent you and your interests, every step of the way.
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