There are many factors that influence the outcome of your divorce case and educating yourself about them can help you set practical goals to work towards. New Jersey family law litigator and divorce mediator Alison Leslie explains the concept of no-fault divorce and discusses issues related to child custody, child support, asset division, and divorce mediation. She also explains the motivations behind recent changes to New Jersey’s alimony statute, which were signed into law in September 2014.
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Hosted by: Dan Couvrette, CEO, Divorce Magazine
Guest speaker: Divorce Lawyer & Mediator, Alison Leslie.
Alison Leslie is a New Jersey divorce lawyer and mediator who is heavily involved with the New Jersey State Bar Association. She is a past chair of the Solo Small Firm Section, has served on the Family Law Executive Committee, and is a member of the statewide Ethics Committee. SuperLawyers has designated her as a rising star for the past nine years. Aside from being a divorce lawyer and mediator, Alison has also been a stepparent for the last 12 years and is a mother of a four-year-old and a three-year-old.
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Read the Transcript of this Podcast Below.
Let’s start at the beginning. What are the ground rules for divorce in New Jersey and does fault really matter anymore?
Leslie: Fault matters when you’re really coming down to dollars and cents, but the majority of divorces are filed under irreconcilable differences. In order to have a complaint based on irreconcilable differences, those differences have to have existed for at least six months and caused the demise of the marriage; you and your spouse must have no chance of reconciling or getting back together. New Jersey’s no-fault is the most popular means of filing a divorce complaint. Additionally, no-fault in New Jersey could be filed after 18 months separation, which means you and your spouse have lived separate and apart for a period of 18 months.
Why file for a no-fault divorce in New Jersey? People do so because they have children, assets in common, or it’s just not working out and they don’t want to bring a certain level of animosity towards the divorce process. People realize that they’re going to go to graduations for their children together and they’re going to sit next to each other at concerts or other school events. The tone they create at the beginning of the divorce really sets the tone for how the two of them will proceed in the future.
That being said, the important fault cause of action is adultery. You would file under adultery if you believe your spouse has dissipated assets with regards to spending money on an affair, and that is a legitimate and important reason for people to file for fault divorce. Alternatively, there are also fault causes of action of extreme cruelty, desertion, addiction or habitual drunkenness, imprisonment, institutionalization, and deviant sexual conduct. However, most people file for irreconcilable differences.
What is the procedure for divorce? How do you initiate a divorce and how long will it take, particularly if someone goes to court?
Leslie: You file a complaint for divorce and then the opposite party has 35 days to answer or to file an appearance. Frequently, they file a counter claim also alleging a cause of action for divorce. You then file a response to that cause of action or an answer to the counterclaim. We then conduct discovery and have case management conferences with the court, which lead us to an early settlement panel where two attorneys volunteer their time within that county to try to propose a resolution of your matter. If your case is not resolved, you attend economic mediation. If your case doesn’t settle, you then go to an intensive settlement conference, at the end of which, if you still haven’t settled, your case will be marked to trial. All in all, you’re looking at approximately one year to two years in the event that your case doesn’t settle. If your case settles, you simply contact the court and you can be divorced very quickly.
It sounds a bit complex, Alison. Would you agree that one should really have a lawyer if they’re going to divorce?
Leslie: I absolutely would agree with that, because it’s a very unwieldy process, or it can be an unwieldy process if you’re doing it on your own. You also need some distance between you and your soon-to-be ex. Having an attorney gives you that perspective, because everything is personal in divorce. You need to have an attorney who understands the challenges, who also understands the procedure with regards to filing for divorce, and also someone who can give you that perspective and explain that procedure to you.
Regarding child custody, Alison, what is the difference between joint legal custody and joint physical custody?
Leslie: Frequently, clients tell me that they absolutely want joint custody of their child without understanding the difference between joint legal custody and joint physical custody. Joint legal custody is the right to make decisions with regards to the care of your child, such as educational, medical, religious, and other major decisions in your child’s life. In New Jersey, most parents share the decision-making process.
Physical custody is where your child is primarily going to live. In New Jersey, we have the parent of primary residence and the parent of alternate residence. When you’re discussing parenting time—or the antiquated term “visitation”—you discuss the best parenting schedule for your child. That’s a decision you and your spouse should both have input on and should discuss as part of the divorcing process.
What is the best way to determine custody?
Leslie: In New Jersey, both parties would be required to attend a parent education class, which will explain custody as well as parenting mediation, at the courthouses. If mediation is not successful, people generally obtain a custody expert at that point in time.
Do you need to have a custody expert?
Leslie: If both parties are unable to agree upon who the parent of the primary residence is, you will need to have a custody expert. A custody expert will interview each party, view each party with the child, and then make a recommendation as to what the parenting plan should be—not only with regards to the parent of primary residence, but also what the parenting plan or visitation plan should be.
Let’s stay on the theme of children and talk about child support for a moment. What are the child support guidelines and what expenses do they cover?
Leslie: The child support guidelines are a formula in New Jersey, but they are a rebuttable presumption. After you determine the parent of primary residence and the parent of alternate residence, you put each party’s income into the formula, as well as whether any alimony is being received or paid and the number of overnights each party has with the child. You also include additional costs that you may have for the children, such as medical insurance and other reoccurring expenses that are known and predictable. Sometimes people even put in work-related childcare. The formula then computes a number for what the weekly child support amount should be. The expenses include the parent of primary residence, cost for shelter, cost for transportation, ordinary clothing, school lunches, and ordinary expenses that the child has in living with the parent of primary residence.
What happens in a case where there are extraordinary expenses? Perhaps the child is involved in sports or does dance. Are those costs covered in the child support as well?
Leslie: Those costs are not factored into the child support. It really depends upon the incomes of the parties and whether they agree that the child should be in those activities. If your child has always been an athlete, has always taken dance, or even if they have a special interest in doing a new activity, the parties will usually agree to pay equally or in proportion to their incomes for these additional costs. That can be put into your matrimonial settlement agreement or it could be agreed in addition to the child support guidelines.
As a lawyer who has been practicing family law for quite a while, do you find that things that seem important—in terms of dividing assets or diving time with the children—sometimes work themselves out over time? Or does that not happen?
Leslie: I do believe that happens, but it also depends upon how good their agreement is. The better and more detailed agreement you have with regards to a matrimonial settlement or property settlement, the more of these expenses you have spelled out. The more that things are spelled out so you can anticipate and talk about them—such as how you are going to divide the cost of a prom dress and renting the limo if you have a child in high school with prom coming up—the better it is going forward.
If you’re talking about dance class, how are they going to pay for the dance shoes, the dance recital costs, and the costume? The more detail that you have in an agreement, the better it is, because it really opens up the lines of communication for the two parties.
Speaking to your question earlier about why it makes sense to have an attorney to navigate through this process: attorneys deal with this day in and day out, while a parent may just assume their spouse is going to pay for an expense. If spouses are divorcing then clearly they have not been on the same page. You want to make sure they’re on the same page going forward; otherwise, one person may assume their spouse is going to pay and the other may assume that the child simply isn’t going to be enrolled in these activities.
It makes sense to you, and you’ve seen from experience, that working a little harder to come up with an agreement that everybody’s clear about will create more possibility of co-operation down the road.
Let’s talk about asset division. What is considered matrimonial property and what is considered separate property in New Jersey?
Leslie: In New Jersey, it is actually called marital property. Marital property is considered from the date of marriage to the date of the filing of the complaint for divorce, unless the parties agree to a different date of division. For example, some people might not want to file a complaint for divorce and would rather mediate or delay the filing. If they have an agreement determining the cut off date for the evaluation of the assets, they can use that date, too.
Separate property is property that’s either acquired prior to the marriage or was acquired by another means, such as a gift from someone other than your spouse, an inheritance, or something that was acquired through non-marital efforts of the other party.
When a client owns a home, do you recommend that they keep the marital home?
Leslie: It really depends upon the details of the case. Oftentimes, the marital home has a lot of work that needs to be done. People don’t necessarily consider that, especially if they have young children and they want to keep the house until the children either graduate from high school or reach a much longer deadline. In many cases, people don’t realize that the house may need a new roof, new plumbing, or a new hot water heater. There are a lot of surprise expenses that occur with a house, so in determining a person’s final settlement, they must budget for these opportunities and these issues that may arise in keeping the marital home.
How do people go about dividing their retirement assets that they may have in their marriage?
Leslie: First we identify what types of assets they are. Is it a pension? Is it differed compensation? Is it a 401(k)? Is it an IRA? Do we have a value on these assets? The first issue is identifying the assets as well as identifying whether they’re marital property or whether there’s a pre-marital component to them.
How do people go about dividing pensions as they’re going through divorce? I’ve heard a term called “QDRO”. Maybe you can explain what that is in relation to pensions.
Leslie: A QDRO is a qualified domestic relations order. It is required under federal law. After you have a signed property settlement agreement, your attorney will send the property settlement agreement as well as the pension information and the checklist to someone who prepares QDROs. All they do is prepare QDROs, because the nuances of federal law are quite difficult. I would then review the QDRO prior to it being sent out to the planned administrator where it would be quote-unquote qualified. If it meets the planned administrator’s approval, it is then sent to the court and the judge signs the order. Then I would send it back to the planned administrator, where the pension would subsequently be divided.
Can IRAs be transferred between spouses if they’re going through a divorce?
Leslie: Most IRAs are able to be rolled over or the marital portion that is being divided is rolled over. In very rare circumstances do you need a QDRO for an IRA.
Let’s talk about mediation. First of all, why don’t you explain what is mediation and how does it work?
Leslie: Mediation is a process by which both parties are seeking an amicable resolution to the issues and their case with a third neutral party acting as a go-between to broker a deal. The benefits of mediation are that both parties have more control over the resolution of their case, as opposed to having a judge just tell them how their case is going to be resolved. It’s more of an empowering process for both parties, because they know their situation, they know their children, and they know what will work best for the two of them moving forward.
If the mediator is successful, they would draft a memorandum of understanding and the attorneys would then draft that into a marital settlement agreement or property settlement agreement for both parties to sign.
How does mediation actually work? Does each person have a mediator or is there one mediator for the two of them?
Leslie: There’s only one mediator. However, I highly recommend that both parties go to mediation with a lawyer. The mediator’s job is to broker a deal between the two parties, but the mediator’s job is not to explain the law to each party or to make sure it’s a fair agreement. That is the job of the lawyer. If you have lawyers involved from day one in the mediation process, it streamlines the process and the parties are able to reach, in most cases, a winnable and workable solution that will have fewer revisions going forward and will most likely result in a marital settlement agreement.
Does the lawyer attend the mediation or do just the divorcing couple and the mediator attend the mediation?
Leslie: I prefer to have attorneys attend the mediation and I prefer to go to mediation when they are involved in the mediation, simply so that everyone is on the same page as to what everyone is agreeing upon. Frequently, when parties attend mediation without an attorney, one party has a different understanding as to what was negotiated and what occurred than the other party. After the lawyers review the memorandum of understanding, they make changes and comments to the memorandum of understanding if they were not present at the mediation. Having an attorney attend mediation is, believe it or not, a more cost effective way to resolve your action.
Alison, can you tell me what the current alimony law is in New Jersey? I understand it has recently changed.
Leslie: That’s correct. It was just signed into law in September of 2014 and modifies the prior alimony statute. The biggest modification for couples who are divorcing is that the durational limits of alimony have changed. Specifically, for any marriage that is less than 20 years in duration, the total amount of alimony shall not, except in exceptional circumstances, exceed the length of the marriage or civil union.
Previously, you may have heard the term of permanent alimony. The term has been modified from the current alimony statute, but the statute does continue to look at several factors, such as the need of the parties for second residences and the impact of an increase in living expenses on the ability of both parties to maintain a standard of living reasonably comparable to the one they established in the marriage or civil union. Neither party has a greater entitlement to that standard of living.
Where situations do differ from the durational limit, in the exceptional circumstances that you heard me talk about, the law still discusses the ages of the parties at the time of the marriage or civil union, or at the time of the alimony award, the degree and the duration of the dependency of one party on the other during the marriage, whether the spouse or the partner has a chronic illness or unusual health circumstances, and whether either party gave up a career or career opportunity to support the career of the other party. Also, whether one spouse or partner has received a disproportionate share of the marital estate, the impact of the marriage on either parties ability to become self supportive, including whether one person was a primary caretaker of a child, and tax considerations of the other party.
These are very important modifications to the alimony statute as it previously occurred. Co-habitation is also very important when discussing and negotiating alimony and this new statue specifically states that the court may suspend or terminate alimony if a payee cohabits with another person. Co-habitation is not defined by the statute as necessarily living in the same household, but by intertwining finances, such as joint bank accounts or other joint holdings, sharing or joint responsibility for living expenses, recognition of a relationship within a social or family circle, living together, frequency of contact, sharing household chores—so be careful when you’re taking out the garbage at night—or whether there is any type of palimony agreement or other side agreements between the payee and the person that they’re in the relationship with.
All of those are important factors that have now been modified by the alimony statute and should always be discussed.