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Family Law FAQs

Can I contest the divorce itself?

Theoretically, a person can contest a divorce, but it would be a rare situation where a judge would not grant a divorce if one party wanted a divorce. Generally, when someone refers to a "contested divorce" they do not mean that the divorce itself is contested, but instead that a divorce is pending and the issues (i.e., custody, support, equitable distribution, etc.) have not been resolved.

How quickly can I be divorced?

Once a case is settled, the divorce can take place. Although divorces can be completed in a few weeks, that is rare. Generally, a divorce takes between five to ten months from the date the complaint is filed until the Judgment of Divorce is entered. The time varies depending on the county of venue and the complexity of the issues. If there are significant issues involving custody or business evaluations, a divorce may take longer than a year.

Does adultery have any significance?

Not really. While adultery may cause an enormous amount of emotional pain, except in rare and extreme circumstances, it has no impact on how assets are distributed, and it has no impact in calculating alimony and child support. You can still file a complaint for divorce based on adultery, but that is generally done only if your spouse's boyfriend or girlfriend has financial dealings with your spouse, in which case it might be necessary to make them a party to the suit for Discovery purposes.

What is the cost of a divorce?

The cost varies depending on a number of factors. Almost all matrimonial attorneys are paid on an hourly basis, and the sooner that all issues are resolved, the less expensive the divorce. You and your lawyer have to do a cost-benefit analysis before deciding on what course of action to take at any given time during the pendency of the divorce. In addition to the legal fees paid to your lawyer and the filing fees with the court, there may be costs to retain experts to perform house appraisals, accounting reports, custody evaluations or pension evaluations.

Can my spouse and I retain the same attorney?

No. One attorney should only represent and give legal advice to only one party. You and your spouse may jointly go to a mediator, but you will ultimately be advised to each retain your own lawyers.

What is joint custody?

In almost all cases, parents share joint legal custody of their children, and usually, one person has residential or physical custody or is designated as the parent of primary residence. In some cases, parents share residential custody, which means that the children spend approximately equal time with each parent.

Custody and parenting schedules are always subject to modification based on changed circumstances. This may be necessary because of changes in a parent's work schedule or the changing needs of the children over time.

How is child support calculated?

In almost all cases involving children 18 and under, the court will set support in accordance with the Child Support Guidelines. Matrimonial lawyers and judges have a computer program that calculates support based on the parties' actual or imputed incomes. The program requires the input of information concerning the payment of alimony, mandatory retirement contribution and union dues.

The costs of health insurance for the children and day care costs are also factored into the calculation, as are Social Security benefits if paid on behalf of the child and support paid for other children. Additionally, the amount of overnights with each parent is considered by the program. Once this information is entered into the program, a child support figure is shown, and except in rare circumstances, that figure is accepted by the Court.

When does child support end?

The short answer is that child support ends when the child is emancipated. The more difficult question, and one which is fact-sensitive, is what constitutes "emancipated." While there is a presumption that a child is emancipated on his or her 18th birthday, the child is not emancipated if he or she is still in high school or attending college.

A child who suffers a disability (i.e., Downs Syndrome, severe Autism) may never be emancipated and child support may continue indefinitely. In general, a court will not emancipate a child who is attending college on a full-time basis.

Does a person have to pay for the college costs for their child?

In most cases, the answer is yes, unless the parent has minimal income. This issue is highly fact-sensitive and a very common post-judgment issue. If asked to decide the issue, a court will be guided by several cases, including Newburgh v. Arrigo, which set forth factors that are generally referred to as the Newburgh factors.

What is permanent alimony?

Although alimony may be considered to be permanent, it may end under certain circumstances. For example, if the party receiving alimony remarries, alimony will end. If a party receiving alimony starts living with another person in a family-type relationship, alimony might end or be modified.

Can alimony be modified after the divorce?

Yes. Alimony is subject to modification depending on changed circumstances, unless the Property Settlement Agreement clearly prohibits such modification. This may include remarriage of the party receiving alimony, the loss of a job by the party paying alimony or the retirement of the party who is paying alimony.

Can alimony be terminated if the supported spouse moves in with another person?

Yes, but it is not always easy to prove that the supported spouse is living with another person in a family-type relationship. Even after you prove cohabitation, the court must determine whether there is a financial relationship between the supported spouse and the person he or she is living with.

What property is not subject to equitable distribution?

Recoveries from personal injury actions and inheritances are not subject to distribution unless those amounts have been merged with the marital assets. An engagement ring should not be distributed, but belongs to the wife. These are the three most common types of assets that are not subject to distribution.

Are pensions subject to equitable distribution in a divorce?

Yes. Pensions and other retirement accounts (i.e., 401(k)s, IRAs) are subject to equitable distribution. In general, the part of the retirement account that was acquired during the marriage is distributed equally between the parties. For example, if the parties were married for ten years and the wife worked for her employer for twenty years, the husband would be entitled to one half of ten years of the pension or 25% of the pension.

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