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Ask the Expert: Dispelling Divorce Law Myths - An Attorney Shares the Facts

What you need to know about divorce law in NJ



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photo provided by Norris, McLaughlin & Marcus, P.A.
 

When going through a divorce, clients are often confused about their rights and obligations and, because of this, their expectations are often unrealistic.  Frequently clients will tell me what they believe the law to be, only for me to have to educate them otherwise. Here are some of the most common misconceptions I hear:

MYTH: My spouse left me and I need to file immediately for a legal separation.

TRUTH: In New Jersey, there is no such thing. We do have a cause of action (grounds for divorce) based on 18 consecutive months of separation.  This is a basis for a divorce – not a basis for a legal separation.  While some parties may have the financial means to live separate and apart during their divorce process, the marriage remains intact as do the obligations of the parties as a married couple.  Further, since we have irreconcilable differences as grounds for divorce, nearly 99.9 percent of the divorces I handle are put through on the grounds of irreconcilable differences, and the 18-month separation cause of action is not so often used.  

PHOTO PROVIDED BY NORRIS, MCLAUGHLIN & MARCUS, P.A.

MYTH: My spouse abandoned me.  I want consequences for this abandonment.

TRUTH: There are really no legal consequences for such “abandonment.”  Where this does become important is if custody and parenting time are at issue. If a parent abandoned his/her spouse and child(ren), this will have implications in a custody and parenting time determination.  I often counsel my clients that they are not to leave the marital residence unless and until custody and parenting time issues are resolved. 

MYTH: It does not matter who my spouse hires as an attorney; we want an amicable divorce.

TRUTH: Unfortunately, it does matter.  Some attorneys are resolution-oriented; some are not.  If you and your spouse seek resolution, you need a resolution-oriented attorney.  Of course that doesn’t mean one who can’t protect you and advocate for you.  It means one who respects your desire for an amicable resolution while advising you of your rights.

The fact is that clients can get divorced as soon as an agreement has been reached between them.  They are in sole control of their fate and hold the time of the resolution of all of their issues in their own hands. 

PHOTO PROVIDED BY NORRIS, MCLAUGHLIN & MARCUS, P.A.

MYTH:  My spouse is at fault and, therefore, must pay extra. 

TRUTH: Unfortunately, for the most part, fault does not matter.  In some extremely egregious situations, it may, but these situations are certainly a rare, if ever, exception to the rule.

PHOTO PROVIDED BY NORRIS, MCLAUGHLIN & MARCUS, P.A.

MYTH: My child has turned 18, so now I don’t have to pay child support anymore.

TRUTH: Emancipation does not automatically occur at 18.  It may or it may not.  The analysis in deciding if a child is emancipated is whether or not the child is outside the “sphere of influence” of his or her parents, or if they are self-sufficient.  For example, children attending college full-time are not emancipated.  Special needs children may never become emancipated.  When a child becomes emancipated is a fact-sensitive determination.

MYTH: Common law marriages exist in New Jersey.

TRUTH: They do not. Clients often think that if they are living together for an extended period of time, they become common law husband and wife.  They do not.  There may be a palimony issue arising out of contractual obligations and promises, but there is no marriage.

Jeralyn L. Lawrence, a Member of Norris McLaughlin & Marcus and Chair of its Matrimonial & Family Law Group, devotes her practice to matrimonial, divorce, and family law. Lawrence is Secretary of the New Jersey State Bar Association and a former Chair of its Family Law Section.  She is also Treasurer of the American Academy of Matrimonial Lawyers, NJ Chapter. She has been widely recognized for her contributions to her profession and she is a three-time recipient of the New Jersey State Bar Association Distinguished Legislative Service Award, the highest recognition of a member's noteworthy legislative service. She has also been named as one of New Jersey's Top 50 Women in Business by NJBIZ and was recognized by her peers as one of the Ten Under Forty, New Jersey's top 10 matrimonial lawyers under the age of 40; and New Jersey Law Journal's 40 Under 40, 40 accomplished and promising attorneys in the State of New Jersey under the age of 40.

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