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Family Law

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Family Law

Divorce

Going through a separation and divorce is stressful, frustrating, and emotionally draining. If you are contemplating getting a divorce or are in the process of a divorce, Silva Law is here to help you maneuver through the divorce process. There are many issues one must consider if divorce is what you ultimately decide to obtain.

These issues are:

  • Custody and parenting time with the minor children, if any.
  • Child Support for maintenance of minor children.
  • Equitable distribution of marital assets and marital debt acquired during the marriage.
  • Alimony, whether limited duration, open duration, rehabilitative or reimbursement alimony.
  • Qualified domestic relations orders for pensions, 401K, and other pension plans.
  • Personal injury suffered during the marriage, known as a Tevis claim

The law permits a divorce pursuant to NJSA 2A:34-2 for the following statutory reasons:

  • Adultery
  • Willful and continued desertion for a term of 12 or more months.
  • Extreme cruelty, defined as including physical or mental cruelty which endangers the safety or health, or makes it improper or unreasonable to expect a spouse to continue to cohabit with their spouse.
  • Separation, provided that the husband and wife have lived separate and apart in different habitations for a period of at least 18 or more consecutive months provided, that after the 18-month period there is a presumption there is no reasonable prospect of reconciliation.
  • Voluntarily induced addiction or habituation to any narcotic drug as defined in the New Jersey Controlled Dangerous Substances Act, or habitual drunkenness for a period of 12 or more consecutive months subsequent to marriage and preceding the filing of the complaint.
  • Institutionalization for mental illness for a period of 24 or more consecutive months after marriage and next preceding the filing of the complaint.
  • Imprisonment of the defendant for 18 or more consecutive months after marriage, provided that where the action is not commenced until after the defendant’s release, the parties have not resumed cohabitation following such imprisonment.
  • Deviant sexual conduct voluntarily performed by the defendant without the consent of the plaintiff.
  • Irreconcilable differences which have caused the breakdown of the marriage for a period of six months, and which make it appear that the marriage should be dissolved and that there is no reasonable prospect of reconciliation.
Alimony

Alimony is one of the most significant financial consequences in a divorce because it imposes a financial obligation on one party. Alimony ensures that the parties’ economic fortunes will remain entwined with periodic payments from one party to the other. The statute authorizing alimony is found at NJSA 2A: 34-23, which encompasses 14 factors that the court must consider.

New Jersey no longer adheres to “permanent alimony. Rather, the allowable types of alimony are open durational alimony, limited duration alimony, rehabilitative alimony, and reimbursement alimony. The statutory criteria authorizing alimony are located at NJSA 2A:34-23.

Separate Maintenance

Upon the separation or abandonment, the supporting spouse may be ordered to support a spouse and maintain marital assets, while remaining married. Although separate maintenance does not emanate from divorce court, it is analogous to alimony, but ordered in the Family Division of Family Court.

Equitable Distribution

Equitable distribution may become hotly contested. At the end of the day, a determination is made as to who gets asset, and if contested, whether a particular asset is marital or premarital. Marital assets consist of real (real estate) and personal property, that are legally and beneficially acquired during the marriage. Another area that is also subject to equitable distribution, and sometimes ignored is that during the marriage, are marital debts and liabilities, that the marital estate acquired during the marriage, subject to equitable distribution.

Custody of Children

New Jersey allocates various legal forms of custody of a child or children, between parents, and sometimes third Parties.    The various forms of custody are:

  • Sole Custody.
  • Joint Custody, with one parent declared as the parent of primary residence, and the other parent as the parent of alternate residence.
  • Shared Custody, generally referred to when parents share an equal amount of time with their children.

While custody is frequently contested, parenting time between parents and child(ren) is highly contested, as well.

Child Support

Generally, the parent declared as the Parent of Primary Residence receives child support from the Parent of Alternate Residence.  The law requires the obligor parent to pay support for and on behalf of the children, from all sources of income of that parent.  In most cases, child support is determined by applying the New Jersey Child Support Guidelines for the child or children of the relationship.  Your tax returns, three (3) most recent pay stubs and W-2 or 1099 are used to determine your child support obligation.

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