• Divorce misconceptions
  • June 10, 2013
  • Law Firm: The Micklin Law Group - Nutley Office
  • Practicing divorce law for more than 15 years, I heard countless divorce misconceptions.   The difficulty arises in filtering the wealth of information available, some incorrect and some not binding in New Jersey.

    Additionally, many ask others for advice.  Most do not realize that divorces are never the same.  Divorces are not complicated; people are.

    With that being said, I want to address some popular misconceptions.

    1.  18-month separation is required before a divorce.  

    It is not.  You can file for divorce for18-month separation, extreme mental physical cruelty, sexual deviant behavior, substance addiction, irreconcilable differences, adultery, abandonment, desertion, institutionalism, and imprisonment.

    Each has a waiting period and proof elements. Obviously, 18-month separation requires physical separation for at least 18 months.  People who are separated that long before filing elect this provision.

    18-month separation was the closest to a “no fault” divorce.  All provisions required proof of, for a lack of better words, a bad act.  So, 18-month separation was easier to prove, assuming physical separation for that period. Historically, 18-month separation was the easiest to prove prior to the adoption of irreconcilable differences.

    However, New Jersey recently recognized irreconcilable differences.  “Irreconcilable differences” requires a six-month “waiting period” and no physical separation.  One must only be able to say, “Irreconcilable differences exist that cause the breakdown of marriage for at least 6 months”.

    Irreconcilable differences can be almost anything.  There is not a married couple that I know that could not say they have had irreconcilable differences.  In conclusion, you do not need to wait 18 months to file for divorce unless you want to.

    2.  If you leave your house, you have abandoned it.  This is not true.  You do not abandon an asset simply by moving out.  Abandonment is one reason for filing a divorce but it does not affect assets.

    3.  Prenuptial agreements are for the wealthy.  Certainly these agreements help those that have acquired significant assets before marriage. However, prenuptial agreements help all couples about to marry. Many believe that a prenuptial agreement is a healthy, positive thing for a couple.  Exchanging financial information and outlining resolutions early is healthy. Without one, you face these difficult issues when the relationship is strained and finances are difficult.

    4.  You cannot get alimony if married less than 10 years.  No bright-line rule to when alimony exists.  There is no set number of years that qualifies a person for alimony. It is a combination of many factors.  Alimony assists a spouse who lost the opportunity to advance his or her career during the marriage.  It helps that spouse in maintaining a comparable lifestyle to that of the marriage.  A court can consider a spouse’s respective ability to pay, the duration of the marriage, the age and health of the parties, the marital standard of living, earning capabilities and employability and equitable distribution of marital property.

    5.  Permanent alimony is awarded after 10 years of marriage.  As stated above, no set time exists for alimony. However, the longer the marriage, the more likely a person will receive permanent alimony.

    Some cases suggest permanent alimony can be awarded after 10 years but those are very fact-specific cases.   A long-term marriage, 15 to 20 years or more, may warrant permanent alimony. However, courts must still consider the factors above.

    6.  Legal separation.  People will often ask about legal separation.  New Jersey does not recognize legal separation.  We have something called a “divorce from bed and board” also referred to as a “limited divorce.”  This divorce resolves financial issues without severing the legal marital contract.  In essence, the parties remain technically married and cannot remarry but resolve their financial aspects.  Either may, within a period of time, convert this “limited divorce” to a full divorce.

    This divorce is commonly utilized by either very religious people who can not or are unwilling to seek a full divorce or people who need to continue medical insurance who may be unable to obtain it once they are divorced.

    Additionally, there is the option of a post-nuptial agreement.  A post-nuptial agreement is similar to a prenuptial agreement but, as the name suggests, is entered by the parties after marriage.  This serves to resolve the financial issues between parties while leaving the parties married and you do not have to file anything with any court.

    7.  A custodial parent cannot leave the state of New Jersey with the children without the other parent’s permission.  This is inaccurate for two reasons: first, any parent can leave the state with their child if “custody is not an issue.”  Typically, this means if there is not and has not been any litigation involving the children with regard to custody, parenting time or child support.  So, if neither parent ever brought the other parent to court about the child or children, either is free to come and go with the state.  To be otherwise, would prevent parents from taking children on vacations or over the bridge to New York for the day.  Clearly, not the intention of the legislature.

    Secondly, one can seek the court’s permission if he/she cannot acquire the other parent’s permission.  What needs to be proven depends on the type of shared custody.  In the typical alternating, over-night weekend parenting time schedule, the custodial parent only needs to prove that the move is in the child's best interest, there's a good-faith reason for the move and will not harm the child or the child's relationship with the noncustodial parent. In the case of a true shared physical custodial arrangement, the parent that seeks to relocate needs to establish that it is in the child's best interest.

    These issues relate to relocation permanently. Is entirely different when it comes to extended vacations. Absent any issues in the past of parental alienation or interference, the burden of proof is much lower and the custodial parent only needs to show the itinerary for the trip and the return day.

    8.  Common Law Marriage.  Many people believe that they have a common law marriage if they have been together, living as husband and wife, for several years.  The common belief I have heard from many is either seven or ten years.  Either way, it is incorrect.  New Jersey does not recognize common law marriage.

    An interesting issue that, to my knowledge, has not been address is whether or not New Jersey will permit a divorce to a New Jersey resident that moved here from a state that recognizes a common law marriage.

    The United States Constitution mandates that each state must give “full faith and credit” to all “public acts, records, and judicial proceedings of every other state."  Citations omitted.  So, if there is an enforceable common law marriage in another state, New Jersey may have to permit that couple a divorce.

    9.  A spouse cannot receive alimony if he/she commits adultery during the marriage.  That is, largely, incorrect.  New Jersey’s alimony statute, NJSA 2A:34-23(b) sets forth 13 different criteria for a judge to consider when awarding alimony.  They include:

    1. The actual need and ability of the parties to pay;
    2. The duration of the marriage;
    3. The age, physical and emotional health of the parties;
    4. The standard of living established in the marriage and the likelihood that each party can maintain a reasonably comparable standard of living;
    5. The earning capacities, educational levels, vocational skills, and employability of the parties;
    6. The length of absence from the job market of the party seeking maintenance;
    7. The parental responsibilities for the children;
    8. The time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, the availability of the training and employment, and the opportunity for future acquisitions of capital assets and income;
    9. The history of the financial or non-financial contributions to the marriage by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities;
    10.  The equitable distribution of property ordered and any payouts on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair;
    11.  The income available to either party through investment of any assets held by that party;
    12.  The tax treatment and consequences to both parties of any spousal support award, including the designation of all or a portion of the payment as a non-taxable payment; and
    13.  Any other factors, which the court may deem relevant.

    Number 13 is the problem.  I believe that I have read an old reported case in which the judge factored a spouse’s adultery into the alimony equation but I can be certain and I have been unable to relocate it.

    As a hard and fast rule, the statute does not list adultery in the criteria to consider.  Basic statutory construction states that, if the legislature intended it to be a factor, they would have included it.  Moreover, I have never seen a judge even consider it.

    I believe, in all fairness to our readers, it is POSSIBLE that alimony could be a factor included within the catch all of factor number 13. It is in my opinion, however, that the family court, being a court of equity or fairness, would never increase one’s alimony award BECAUSE of that same spouse’s adultery.