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• Disclaimer

  So, Medina, Martinez & Castroll, LLC is a law firm and the people writing these posts are lawyers, but not your lawyers. We can't give you specific advice on your case unless you retain us (and we'd be happy to have you come into the office to discuss taking you on as a client). Otherwise, what is written here is purely for informational purposes for people interested in reading about divorce and family law in New Jersey and is not legal advice or counsel. Despite what is said here, the facts of your situation might warrant a different result and the laws of your state may differ widely from those of New Jersey.

Thanks to Georgia Family Law Blog that recently posted this from DivorceGuide.com. It’s a list of common divorce terms. Although New Jersey uses a few different terms, these are pretty universal.

Adultery. This is one of the original grounds for divorce. In many states previously if you could not prove adultery, then you were unable to obtain a divorce. The determination that a spouse was guilty of adultery, which is sexual intercourse of any form with a person other than your spouse when married, this often results in a division of property other than a 50/50 split for the spouse that was cheating. Today adultery is used less in determining fault.

Alimony. Also called maintenance and spousal support in many states this is typically a periodic payment made to one spouse from the other. The purpose of alimony is to allow a spouse to gain employment, or an education that will allow them to gain employment. Often alimony is also used to help keep the economic situation of the spouse with lower resources closer to the pre-divorce level. Some alimony has a specific time period to end, while other alimony is in effect indefinitely. Typically, the spouse paying alimony is able to enjoy a tax deduction for the amount paid, while the receiver must claim the amount received as taxable income.

Alternative Dispute Resolution. This includes mediation as well as collaborative law and negotiations that are settled out of court. Some states require an alternative dispute resolution method be tried before a court will hear that case, however not all courts require this. Agreements that are reached are then given to the judge after both parties sign the agreement and the judge will decide upon the terms agreed upon to ensure that both parties are treated fairly.

Annulment. An order from a court stating that a previous marriage never legally existed. Typically, there must be some sort of legal reasoning for an annulment, such as one party was already married, or one party was underage and proper consent was not obtain for example.

Answer to Complaint and Counterclaim. This is the response that the defendant files answering all of the claims and allegations against them that the plaintiff has stated when the complain for divorce was filed. If the defendant has their own ideas about the reasons for divorce they are able to file a counterclaim, this would require the plaintiff to file a response to the counterclaim.

Appearance. This is a paper that must be filed with the courts that registers the name of your lawyer and their contact information. Additionally, if you represent yourself you file yourself as the attorney of record. Once this is done, any paperwork that must be delivered to your side is served to your attorney of record. Once an attorney is on file, they may not withdraw without your permission or the permission of the courts.

Arrearages. This is the difference between the amount ordered to be paid, and the actual amount paid. If the full amount is not paid, it results in an arrearage that must be paid at some point. However, if the arrearage is perceived because of payments that have been reduced that are not ordered by the courts, then it is not an arrearage.

Automatic Restraining Order. A restraining order that goes into effect when a divorce case is filed. However, other circumstances also exist. When an automatic restraining order goes into effect, neither party may transfer or dispose of any marital property without a court order, or the written permission of their other spouse. If a spouse transfers assets without the proper permission, they could be punished with financial penalties, or even potential jail time.

Best interest of the child. This is a legal standard as well as a doctorine that is used to help determine what the best interest of the child is when there is a disagreement between the parents.

Biological Mother. This is the female who provides genetic material for the child in question. Because of surrogate mothers, this is not always the mother who carries the child during pregnancy.

Child Support. Payments ordered by the courts to ensure that the non-custodial parent pays money to the custodial parent for the maintenance of the children of the marriage. Can also be used when a marriage did not occur, however must have a court order to obtain.

Cohabitation. The practice of two people living together that are not married. Typically, this can become a major problem in a divorce case if the parties have children and one party does not agree, or if a spouse, receiving alimony decides to cohabitate in order to avoid marriage and terminating the alimony they are receiving.

Collaborative Law. The process of settling a divorce without ever seeking the help of the courts, both spouses agree to work with a lawyer to fully agree upon all of the issues involved in their divorce. If however, the collaborative law process fails, both lawyers are dismissed and new lawyers are retained for the divorce trial.

Community Property. Method of deciding how property will be divided. There are nine community property states in the United States- Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and lastly Wisconsin. The property that is acquired in these states in the course of a marriage is considered the joint property of both parties. However some exceptions do occur, most notably when an inheritance or gift is given from a family member. Exact state rules vary by location.

Complaint for Divorce. This is an official document filed with the courts that requests a divorce. It lists both parties involved, as well as the grounds and the exact claims that the plaintiff is making against the defendant. In addition, requests for custody and property are also included. In order to start the divorce process it is required that a complaint for divorce be filed.

Custodial Parent. This is the parent with whom the children of the marriage typically reside for the majority of the time. Even if the parents have joint custody, one parent is designated as the custodial parent for legal purposes.

Divorce Decree. Also called a Judgement of Divorce or even a Decree of Dissolution this is the document that is the courts final ruling or judgment that gives the exact terms of the divorce including property division, custody, support, child support, name changes and any other issues raised during the divorce.

Emancipation. The process of a child becoming a legal adult. This is typically used for child support purposes. Many states have changed emancipation to 23 years old instead of 18 to allow for children to attend college.

Ex Parte. This can be either a motion or an order that allows one party to seek the courts help and protection against their other spouse without the presence of their spouse. It allows for one party to have a hearing without being forced to take the time to properly serve the other spouse. This is typically only an option on emergency bases or if you are seeking an attachment. The reason for ex parte is because the side requesting an ex parte hearing feels that it would be dangerous to their safety, or the marital property if the other spouse had warning.

Grounds for Divorce. There are several grounds, which vary from state to state with each having their own requirements to prove the grounds that are being alleged. Adultery, cruel and abusive treatment, abandonment or desertion, long-term incarceration, impotency, and no fault. To determine the proper grounds for your area you must check with a lawyer to see your exact options.

Habitual Residence. Phrase used in connection with the Hauge Convention that refers to the home where a child lived last prior to an abduction. However, this does not speculate how long, or even with whom the child was residing.

Head of Household. A filing status that the IRS allows certain people to claim. However, in order to claim head of household status you must meet certain guidelines. These guidelines are the same regardless of the state of residency and include being unmarried on the last day of the tax year which is December 31st. In addition, you must have paid more than half of the expenses involved in keeping up a home during that tax year. You must also have a person who qualifies you to claim head of household such as a child, or other dependant.

Imputed Income. This is income that is figured in for a spouse that has no income, or if they are determined to be underemployed. This is typically used when determining alimony or more commonly child support. The courts will impute an amount for income based off what the spouse is capable of earning due to their training, education, and previous job experience. This can be applied for one spouse, or even both depending on the circumstances.

Irretrievable Breakdown. A legal grounds used to obtain a divorce using no fault grounds. Using this method the court must be sure that the marriage is broken and there is no hope of the parties reconciling.

Joint Petition. A petition that is filed when both parties request the court to grant a divorce. Often when a joint petition is filed, it is filed along with a separation agreement.

Legal Separation. This is only available in some states and provides a means for the spouses to be legally separated while remaining married. Typically, there will be some orders for custody, visitation, and even child support placed into effect while the separation is in effect. Some states require a separation for a certain period of time before considering a divorce.

Lump Sum. This is also referred to as a lump sum settlement in some areas. This typically is a payment made that would pay off all payments for alimony or other payments. However, payments are not made in full when handled in this manner and typically; a discount is associated since the payment is made all at once, rather than smaller payments over time.

Maintenance. See Alimony for description.

Marital Assets. Property including bank accounts and real physical property that the parties own and have purchased during the marriage, acquired during the marriage, or been given during the marriage that does not qualify as separate or individual property.

Marriage Certificate. This is an official certificate, which is issued by your local government. This must be signed and properly filled out in accordance with your local marriage laws.

Mediation. The process of both parties voluntarily discussing various aspects of the divorce that they disagree upon. Typically, the mediation process involves the use of a certified mediator who is trained in the proper techniques of successful mediation. Because the process is, voluntarily either party can back out and the mediation will be stopped. Many times couples are able to reach agreements by mediation without someone else deciding upon their affairs for them. This is very commonly used in custody disputes, however is not used for child support.

Ordinary Expenses. This are the typical costs associated with living. They include things such as food, shelter, clothing, utilities, and such. However, for those families with larger budgets, it may include some luxury items that is normally included in the family budget before divorce.

Palimony. Payments that are made to someone whom you had agreed to marry and had supported. This is very hard to prove and be successful in receiving unless you have the right circumstances.

Parens patrieae. This is the right of the states to take over control of custody and the care of minor children or anyone else who is legally unable to make their own decisions if there is a good reason based on physical or mental danger.

Parenting Classes. These classes are often required for parents to attend when they have children of the marriage. They are intended for parents to learn how to work together without causing further hardship to the children, however are not as effective as many states would like since it involves parents putting aside their differences for the children.

Parental Kidnapping. One parent taking a child without the authorization of the other parent or the courts by a court order.

Parenting Schedule. This is the schedule that sets forth which parent has custody, as well as when the other parent is allowed time with the child. Also included tends to be issues pertaining to extra-curricular activities, and special occasions and holidays.

Paternity. This is the biological relationship between a male and a child. However, on occasions paternity can be associated with a male who is not biologically related but has legal paternity of a child.

Paternity, Establishment. Determination of paternity that can be done by either a court order or by a voluntary acknowledgement that a father has signed.

Personal Property. This includes things such as bonds, cash, checking accounts, savings accounts, stocks, intellectual property, and even collectibles and pets. Not included in this is land, houses, or other real estate property.

Physical Custody. This is the determination of who has custody of the children physically. This is different from legal custody. This refers to where the children primarily reside.

Premarital Assets. These are all of the assets that are acquired before marriage. Whether they are physical or personal property these assets are separate property. Depending upon your state where you live depends upon how the assets will be divided in the event of a divorce. Some states consider it separate property for a divorce while other states will still divide the property.

Primary Physical Custody. See the description for physical custody.

Pro Se. This is when a client, either a plaintiff or a defendant chooses to represent themselves in court in a legal action without the use of a lawyer. If your case is very complicated it is much more advisable to retain a lawyer for your case if you can financially afford it.

Real Property. Property that is things such as buildings, land, and other real estate.

Recrimination. Term used to describe when the plaintiff in a divorce action is also accused of adultery in the counterclaim filed in court.

Rehabilitative Alimony. Alimony or spousal support paid to help the spouse receiving the payments gain an education or a source of employment. This is typically for a very short period of time, often only a few years before alimony is terminated.

Removal. Typically refers to a parent removing the primary residence of the child. This almost always requires the approval of the courts regardless of which parent is requesting to move so that visitation issues can be resolved as well as the custodial parent prove why it is in the child’s best interest for the move to take place.

Residency Requirement. This is the amount of time, which varies from state to state that you must live in a state before you are able to file for a divorce there. Most states say somewhere between 6 months and 12 months is the minimum.

Separate Property. This is the property that is not part of the marital property in states that are community property states. It often includes assets owned before the marriage as well as certain property acquired during the marriage.

Shared Custody. This is typically an arrangement where the parents share custody of the children. Both physical and legal custody is included in this classification. Typically, physical custody is primarily given to one parent regardless of how much time the non-custodial parent has with the child. Legal custody is the easiest form of custody to share.

Single Parent Families. This usually refers to families where only one parent is involved, due to a divorce, death, or other reason. Most single parent families are headed by a female since most minor children are with their mothers following a divorce. However, recent trends show more fathers heading single parent families now.

Spousal Support. See Alimony, also called maintenance.

Summons. The official notice to a party in a lawsuit that they must respond formally to a complaint or the petition that was filed in courts. A proper service process must be done in order for the summons to be binding. A summons must be attached to the complaint for divorce when it is served.

Temporary Support. This is support, whether spousal or child support that is ordered to be paid while the case is pending. Often the orders are entered early in the divorce process to ensure that children are taken care of while the divorce proceeds for years in some cases.

Tender Years Presumption. This is an old concept that many courts used that stated that mothers were the better parent for custody when a child was young. Most commonly from the age of 10 or younger. However, many states are dropping this method of belief when deciding custody now.

Vacate the Marital Home, Motion. This is typically used to force one spouse to leave the family home. While it is possible to request this, it is not usually granted unless there is a true fear of violence of some form. Because of the hostility that this can cause, it is not recommended to file this motion unless you are sure you will win, and you feel that you have no other options because many spouses react very badly to this motion.

Vacating Order. This is an order from the courts that is designed to vacate or remove an order previously in effect. Often associated with restraining orders and other similar types of orders.

Visitation, Supervised. This type of visitation occurs typically when someone is attempting to rekindle a relationship with a child, or if there is a fear of physical danger. The visits are typically supervised by someone that the court appoints to ensure there is proper supervision.

Visitation Center. A place where children and parents can visit where they are supervised by trained personnel. Typically, a fee is due for each visit that is almost always required to be paid by the non-custodial parent. However, depending upon your exact custody arrangement the custodial parent may be required to pay the fee for the center.

Voluntary Acknowledgement. This is a document that is a written declaration that a man is the biological father of a child. This is done voluntarily and without a court order, or a DNA test.

SOURCE: DivorceGuide.com

Many couples intent on getting a divorce decide to go through mediation before engaging attorneys to institute legal proceedings (regardless of whether they consult attorneys to review any settlement agreements).

What’s important to remember about private mediation (as compared to any mediation incident to divorce proceedings) is that it is a completely voluntary process. You can start it as soon as your ready and you can stop mediating at any point, if you decide that it’s not in your best interests to continue.

Posted by Victor J. Medina
Medina, Martinez & Castroll, LLC

Being engaged in a divorce matter can make communications between attorneys and their clients somewhat tricky. Often, couples have joint email accounts, or their passwords are known (or easily guessed) and hard copies of communications can be compromised if they go to the marital estate (whether or not the client resides in the marital home).

When I conduct initial consults with clients, I make sure that they have a “safe” place to receive emails, snail mail and other communications. This can mean that you have to open a new email account (recommended) and take the steps to protect your password (including setting as strong password containing numbers and symbols). On the snail mail side, it may include opening a PO Box or UPS/FedEx mail box at a private company.

I’m not the only making these suggestions - this guy agrees too.

Posted by Victor J. Medina
Medina, Martinez & Castroll, LLC

I’ve often tried to explain that divorce is the dissolution of the family corporation. It’s a position that is unpopular because it’s perceived as lessening the value of the family.

However, as much as my business law consulting is about planning for the future, so should family law consulting be about planning for the future.

Here’s a recent blog post that illustrated my point about divorce being about dissolving the family business.

A Michigan court of appeals found that a motion to amend a divorce settlement agreement should be treated like a motion to reform a contract. Which generally means that motions based on the unilateral mistake of one party are not typically granted.

Posted by Victor J. Medina
Medina, Martinez & Castroll, LLC

The UPI recently ran a story that said that the end of summer is one of the most common times of the year to start divorce proceedings.

Included in the story was this:

The lawyers said the end of summer is rivaled only by the close of the Christmas season for amount of annual divorces, ABC News reported Tuesday.
…
“This is usually the deferral of a decision that’s been made months earlier,” said James Hennenhoefer, a family law attorney in Vista, Calif.

Our practice has experience similar surges in divorces. The common theme is that couples are waiting for the good times to be over before creating havoc in the home. Although James Hennenhoefer’s suggestion is about the end of summer, it’s typically true that divorces after the close of Christmas are also the deferral of decisions made in the past (usually before the start of the “holiday season”).

Posted by Victor J. Medina
Medina, Martinez & Castroll, LLC

Here is an excellent article discussing the common myths of divorce. Pardon the lazy blog writing, but this is best shared in its entirety:

Legal Notes: Common myths of divorce

By Donald L. Pitman III/Legal Notes

Georgetown -
The very mention of the word “divorce” fills many with sensations varying from dread to shame. Scenes from movies such as “Kramer vs. Kramer” have reinforced the angst many feel when faced with the option of staying in a bad marriage or getting a divorce. However, much of what people believe to be true regarding divorce has changed since the 1970s, when one person had to be “at fault” in order to file for divorce. Now, “no-fault” divorces allow couples to get a divorce when the marriage has suffered an “irretrievable breakdown.”

Here are some of the most prevalent “myths” I’ve encountered over the years as a family law attorney. Every divorce, like every family, is different; however, many of these questions and issues are common.

Myth: If I leave the marital home, I lose all rights to it.
Fact: There are 18 factors that are considered when dividing property between spouses. Nowhere does it state that a person who leaves the marital home loses any rights to it. In fact, there is a trend to consider the fact that a spouse who leaves the home to keep peace in the family deserves some credit for doing so.

Myth: The house is in my spouse’s name, therefore he will get the house.
Fact: The fact that a house is titled in only one spouse’s name does not matter. Generally, any assets that someone has when they get married are considered part of what can be divided for the purposes of divorce, no matter where they came from.

Myth: Once the divorce is done, it’s done.
Fact: Not exactly. Some terms of a divorce agreement can be changed on a showing of a “substantial change in circumstances,” such as one party moving far away, spending less time with the children, the loss of a job or a large promotion that results in a significant increase in income, or as children get older, go to college, or move out of the house.

Myth: My spouse doesn’t need to support me or our children because he’s re-married.
Fact: Child support is not optional in Massachusetts. While the court does consider the existence of a second family, it will do so only after making sure the first family is taken care of. The Child Support Guidelines are a uniform way to ensure that children are provided with an appropriate amount of financial assistance. They can be found at www.massdor.gov.

Myth: My spouse had an affair, so he won’t get anything.
Fact: The fact that one spouse had an affair can be an embarrassment and, sadly, a stumbling block to resolving a case, but it will likely not make a substantial difference in the division of assets. Among the many factors considered in the equitable distribution of property in a marriage is the conduct of the parties (e.g. having an affair). This factor does not determine how assets will be distributed. However, if it can be shown that one spouse spent significant amounts of money on the affair, the other spouse would be credited for what was spent on a dollar for dollar basis.

Myth: Just like in the movie “War of the Roses,” divorce is inherently a mud-slinging battle.
Fact: While divorce can become a battle, it doesn’t have to be. There is a growing trend among lawyers to offer mediation as a way to bring people to an agreement by using a third person who helps guide the process. More recently, some lawyers have started to work together with their clients to find a resolution to their divorce through what is known as collaborative law. Collaborative law includes the use of specialists that both parties agree to work with — and pay for together — that help them deal with issues regarding the children, each other and the allocation of their finances. Both mediation and collaborative law allow the parties to help guide the process along, and aims to avoid the damage that can be caused through the litigation process. Finding an attorney who has experience in mediation or collaborative law is the key to making this successful.

Donald L. Pitman III, a family law attorney at Barron & Stadfeld of Boston, is a resident of Georgetown and lifelong resident of the North Shore. For more than a decade, he has helped clients in both collaborative and litigation-based divorces as well as other family law matters. For information, call 617-531-6597 or e-mail dp@barronstad.com.

If things have gotten to the point that you or your spouse is considering getting a divorce, you’re mind is probably full of a lot of things. One of the ways that attorneys can help is to separate the emotional component of the divorce from the necessary analytical assessment that must be conducted. In its most basic form, divorce is the dissolution of the family business, which may include providing for the continuing obligation of caring for children.

Before beginning divorce proceedings, there are some steps you can take to prepare for the process.

First, before you conclude that a divorce is necessary, you should take some time to think through whether there is any realistic chance that you and your spouse can work things out? If so, you should see that process through. Despite what TV has taught you, there’s rarely any benefit to being the first to file for divorce.

If you believe that you or your children are in physical danger from your spouse, then you should take steps to protect everyone’s well-being. This might include seeking a protective order.

Barring any immediate danger, you should begin to consider the division of assets and debts. This includes making a list of the various real and personal property you own, such as real estate, investments and retirement accounts, vehicles (taking into account what is owed), anything of significant value and mortgages, auto loans, and credit card debt. What’s important is not what you paid for these items, but their current market value.

Some of the assets & debts that most people consider, but which are relevant to any marital dissolution, are any interest in a small business or loans from family members.

You should begin to think about how you are going to tell the children about the divorce. There a number of resources that are at your disposal to educate parents on how to break the news.

Also, electronic data has become the biggest developing area of discovery. To that end, be aware that your electronic tracks can be followed (even with the conventional clearing of history and caches). Watch your Internet and computer use accordingly.

Next up - Anatomy of a Divorce Proceeding

Posted by Victor J. Medina
Medina, Martinez & Castroll, LLC

One of my fellow bloggers, NJDivorceBlog posted this update about a case decided on September 10, 2007 where the trial court resolved a dispute about a missing term from a “settlement on the record.”

Many spouses (usually the ones with the most to lose and with leverage in the marriage) will push for divorces to be resolved by a mediator and look to get those settlements agreed to without having the other spouse carefully consider the outcome, which can include having a written agreement reviewed by attorneys, or in this case, without reducing it to writing in a full-blown divorce agreement and relying on a “settlement on the record.”

Whether or not you choose to engage in litigation incident to your divorce, you’ve got to make sure that you have competent attorney representing your interests and reviewing any settlement. And, as is the case in many negotiations, get the agreement in writing.

Posted by Victor J. Medina
Medina, Martinez & Castroll, LLC

It never ceases to amaze me how many clients get their initial information on divorce law basics in New Jersey from family & friends, instead of from an attorney.

Here are some of the basics - see what differs from what your friends and family (well-intending, I’m sure) told you:

Residency Requirement

To obtain a divorce in New Jersey, one of the two parties must presently live in New Jersey and must have lived in New Jersey for at least one year prior to filing the complaint for divorce.

Grounds for Divorce

No-Fault Divorce -

Until recently, there was no simple “no-fault” divorce in New Jersey. Couples were required to live separated for 18 months before filing for a no-fault divorce. Recent legislation has changed that and now couples may file for a no-fault divorce after 6 months of living apart under the new Irreconcilable Differences.

Fault Divorce

In New Jersey, there are 6 ground for a “fault divorce.” They are Extreme Mental or Physical Cruelty, Adultery, Desertion, Addiction, Institutionalization (for Mental Illness), Imprisonment, and Deviant Sexual Conduct.

Coming up

The next few posts will deal with mediation, alimony, custody and some of the other important issues regarding matrimonial law in New Jersey.

Posted by Victor J. Medina
Medina, Martinez & Castroll, LLC

It seems that every weblog starts with a post called “First Post” and I don’t want to jinx the success of this blog by deviating from the standard. Not to mention, this gives me a chance to test the blog. So, here’s “First Post” - this is going to be a great resource for family law, especially in New Jersey.