In New Jersey parties can now get a divorce based on irreconcilable differences for 6 months prior to filing for divorce. The parties can live together during this 6 month period. Other grounds for a divorce include 18 months separation, extreme cruelty, adultery, desertion (no sexual relations), addiction, institutionalization, deviant sexual behavior and imprisonment.

During your initial interview, your attorney will discuss the specifics about your situation, and you will have an opportunity to ask questions about the divorce process. If you are ready to start the divorce process you should gather the following items in preparation for your meeting with a lawyer: all information regarding your assets, including checking, savings, brokerage, mutual fund, 401K and other investment account statements. You will also need copies of individual and business tax returns, W-2 forms, life insurance policies and stock certificates, as well as deeds and mortgages on real estate and other properties you own. Your attorney also will ask for details about dependent children in your marriage.

Discovery is a fact-finding process that enables the parties to ascertain what assets each side has, and what constitutes the marital estate. Through various tools, including but not limited to Interrogatories, Notices to Produce, and Depositions the parties gain all of the information they will need to arrive at a final disposition, whether by agreement or court order. The parties have the right to pursue discovery as regulated by court rules as well as, the schedule set forth by the Court as part of a Case Management Order.

Yes, at least one spouse must be living in the state for at least 12 months before filing.

The initial pleading in any divorce is the Complaint for Divorce. A family law attorney can assist you. In New Jersey, your attorney will file a document on your behalf called a “Complaint” with the appropriate Superior Court. The Complaint sets forth a position regarding the children, marital assets and debts, reasons for seeking divorce. The Complaint is then served on your spouse or spouse’s attorney. Nothing, however, precludes parties from negotiating settlements, regarding custody, alimony, child support, or equitable distribution prior to filing the Complaint with attorneys or with the assistance of a mediator.

After being served a petition or complaint, you have 35 days to answer. Answers are a written response where you may admit or deny each claim within the Complaint and give your version of what occurred. You may also file a Counterclaim, which is a claim for divorce on your part in response to your spouse’s claim for divorce. At Helfand & Associates, our legal services related to divorce include preparing our clients’ Answers to divorce petitions or Complaints, as well as Counterclaims, if needed. We, of course, also help you to resolve the core issues in the case through negotiation or litigation.

If parties are living in an extremely contentious environment with a high likelihood of domestic violence erupting, it is better if one party moves out of the house to “lower the temperature” and to avoid the much more serious problem of domestic violence. If there is little to no likelihood of domestic violence, but just discomfort, the parties must consider the finances before moving out. Are two households affordable at this time? If the marital home is owned, usually it is sold or refinanced as part of the divorce, but it must continue to be maintained until a final resolution of this house issue, sometimes at the end of the case.

There is a concept of “abandonment” that people fear when considering moving out. One can move out during a divorce, if it makes sense, but still continue to be financially and parentally responsible without abandonment. Each case is truly unique. The above circumstances in no way describe all the facts necessary to consider when moving out. Definitely talk it over with your lawyer before making the move.

While a divorce case is pending and the parties are still married, if it makes financial sense to file a joint tax return to save money, the parties should do so. The Court has the power to compel parties to file a joint return or issue a credit to the party who lost money because the other party refused to do so. Bursztyn vs. Bursztyn, 379 NJ Super 385.

If, however, one party knows that the other spouse is not being honest regarding income and taxes so that there may be liability to the taxing authority (IRS or State), the honest party should not file jointly with his/her spouse and cannot be compelled to do so. If parties file joint tax returns, there is what is called, joint and several liability in the event of fraud or misrepresentation. The IRS or State can come after either spouse even if one was the earner and the other stayed at home.

If a spouse was not involved with the finances and absolutely did not know about certain unreported income, the spouse can try and limit his/her liability through the “innocent spouse doctrine”. However, if the spouse knew or should have known about the fraud, there cannot be a claim as an innocent spouse.

For example, Case #1, a husband owns a diner (a cash business). The parties’ basic living expenses including mortgage, cars (Hummer & Mercedes), food insurance, etc. is $13,000.00 per month. The wife stays home with the children, but shares a joint checking account with her husband and helps to pay bills. They sign a joint tax return showing personal gross income of $45,000.00 per year because that is how the husband’s W-2 was prepared. The wife, obviously, will be held jointly and severally liable in this case.

Case #2, Husband owns a diner; again the parties’ expenses are $13,000 per month. His W-2 shows approximately $234,000.00 per year justifying the money in the household. Again, the wife is at home with the kids and knows nothing about the husband’s business. The husband takes another $100,000.00 out of the business and makes another investment without any disclosure to his Wife whatsoever, but fails to claim this $100,000 on his taxes with his wife. Wife has a much better case to be freed of liability under the innocent spouse doctrine, but it is always a big fight with the IRS.

In order for a couple to file jointly and save the most money, the parties must still be married on December 31 of the tax year for the filing the following April. Many people wait until after January 1 to get a divorce to take advantage of the financial benefits of filing jointly assuming there is no “funny business”.

Upon final Judgment of Divorce, a spouse can no longer be part of the family plan or employee and spouse plan he was during the marriage. The newly divorced spouse can, however, obtain coverage pursuant to COBRA (The Consolidated Omnibus Budget Reconciliation Act) or continuation of benefits at his/her own cost for the period allowable by law, a maximum of 36 months, depending on the plan and employer.

COBRA gives workers and their families who lose health benefits the right to choose to continue group health benefits provided by the then group health plan for limited periods of time under certain circumstances such as job loss, fewer hours worked, death, divorce, and other life events. COBRA requires employers with 20 or more employees to provide this continuation. Smaller companies in New Jersey also have continuation of benefits programs. The employee must notify the plan administrator of the “qualifying event” (divorce) within 60 days of the divorce. Then beneficiary spouse must be sent election notices no later than 14 days after the plan administrator receives notice of the qualifying event.

The spouse of the employee, if applying timely, is entitled to coverage as of the date he or she would have lost coverage so there is no lapse in coverage. The spouse of the employee also is responsible for the full premium for this continued coverage. For example, if the premium for the spouse was $500.00 per month, but the employer covered 50%, the employee and his/her spouse only paid $250.00 per month for the spouse’s coverage. Upon divorce, the single spouse must now pay $500.00 per month for the COBRA benefit, the full premium. If a premium payment is missed, coverage can be cancelled. Children covered by an employee’s plan will not lose coverage because of the divorce.

Sometimes this premium for COBRA can be negotiated as part of support paid; sometimes it is not. Also in New Jersey, parties can obtain a Divorce from Bed and Board. This is a divorce, but does not extinguish every right and is essentially a “legal separation”. If the parties use Divorce from Bed and Board, the spouse without his/her own insurance coverage can continue to have the same insurance coverage as existed during the marriage. All other property rights are extinguished as a result of Divorce from Bed and Board. Either party at any time can move for a Final Judgment of Divorce without the approval of the other party eliminating the rights and insurance coverage allowable with Divorce from Bed and Board.

A mediator should help parties reach an agreement that is manageable. Neither party should be completely happy or completely dissatisfied. When a case goes before a judge, the judge is, in fact, limited in the types of resolutions he or she can provide in a case.

In mediation, the parties can be far more flexible and creative, and can focus on their individual priorities. A judge in court, on the other hand, might focus on what he or she views is an important factor. For example, the concept of holding a house until the market possibly improves, addressing college while the children are small, offsetting assets against defined benefit pensions, and paying bills directly because of credit issues versus paying alimony are all vague situations which a judge would typically avoid in making an order.

Mediating and agreeing upon these issues, or other extremely complex issues, is often far more effective than leaving it up to a judge. A great benefit of mediation is that complex issues can be resolved creatively and with the parties’ priorities in mind. A court, on the other hand, often imposes orders which are not customized but are uniform and not crafted uniquely for the particular individuals.

The bankruptcy code provides you with a certain amount of equity in the car, which you can keep through the bankruptcy process. If your payments are current and insurance is current, you can retain your vehicle through the bankruptcy process, if you do not significantly exceed the exemption amount.

Typically not. Most student loans are issued through the government and are priority debts, not dischargeable in bankruptcy. Other priority debts not dischargeable are alimony, child support, and fines resulting from debtor being intoxicated from alcohol, a drug or other substance.

Under the bankruptcy code, you are entitled to keep an exempt amount in your home and if you do not have more than the exemption, you are current with your mortgage payments and can continue to pay same, you can typically keep your house.

Bankruptcy can be recorded on your credit report up to ten years.