NEW JERSEY DIVORCE LAW IN A NUTSHELL

The following provides useful information for understanding New Jersey divorce law and procedure. This article does not and is not intended to constitute legal advice, nor is it exhaustive. This article is published for academic purposes only. You should consult a licensed attorney before making any legal decisions or conclusions. Please choose from the following sections of this article to be anchored down the page.

TABLE OF CONTENTS

I. Grounds for Divorce

II. Child Custody and Visitation:

A. The Best Interest of the Children:

B. Parent's Constitutional Rights:

C. The Child's Constitutional Rights:

D. Public Policy/Both Parents are Equal:

E. Objections to Visitation Rights:

F. Factors to be Taken into Consideration:

G. Guardian Ad Litem:

H. Settlement Agreements:

I. Smoking:

J. Third Parties/Boyfriends and Girlfriends:

K. Religion:

L. Mental Health:

M. Homosexuality:

N. Race:

O. Keeping Siblings Together:

P. Preference of the Child:

Q. Joint Custody:

R. Claims that a Parent is Unfit for Vistation:

S. Visitation After an Adoption:

T. Psychological Parents/In Loco Parentis:

III. Attorney's Fees and Costs of Suit

IV. Crash Course in Family Law Proceedings from A-Z:

Step One: Drafting and Filing the Initial Pleading

Step Two: Serving the Complaint

Step Three: Motions

Step Four: Summary Judgment Motions

I. GROUNDS FOR DIVORCE

There are nine grounds for divorce in the State of New Jersey. They are all set forth at N.J.S.A. 2A:34-2. This statute provides,

Divorce from the bond of matrimony may be adjudged for the following causes heretofore or hereafter arising:

a. Adultery;

b. Willful and continued desertion for the term of 12 or more months, which may be established by satisfactory proof that the parties have ceased to cohabit as man and wife;

c. Extreme cruelty, which is defined as including any physical or mental cruelty which endangers the safety or health of the plaintiff or makes it improper or unreasonable to expect the plaintiff to continue to cohabit with the defendant; provided that no complaint for divorce shall be filed until after 3 months from the date of the last act of cruelty complained of in the complaint, but this provision shall not be held to apply to any counterclaim;

d. 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 and there is no reasonable prospect of reconciliation; provided, further that after the 18-month period there shall be a presumption that there is no reasonable prospect of reconciliation;

e. Voluntarily induced addiction or habituation to any narcotic drug as defined in the New Jersey Controlled Dangerous Substances Act, P.L.1970, c. 226 [FN1] or habitual drunkenness for a period of 12 or more consecutive months subsequent to marriage and next preceding the filing of the complaint;

f. Institutionalization for mental illness for a period of 24 or more consecutive months subsequent to marriage and next preceding the filing of the complaint;

g. 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;

h. Deviant sexual conduct voluntarily performed by the defendant without the consent of the plaintiff.

Id.

New Jersey's so-called no-fault divorce option is set forth at N.J.S.A. 2A:34-2(d). Under that subsection, a party does not need to prove wrongdoing on the other party's behalf. All that needs to be proven in order to obtain a divorce is separation for a period of 18 consecutive months and no chance of reconciliation. The more civil thing to do is to obtain a no fault divorce since it will lead to a much more simplified litigation.

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II. CHILD CUSTODY AND VISITATION

A. The Best Interest of the Children.

"The welfare of the child is the primary, paramount and controlling consideration in determining the question of visitation and custody of a minor child." Fiore vs. Fiore, 49 N.J. Super. 219, 225 (App. Div.), certif. denied, 28 N.J. 59 (1958). The best interest of the child is just about all that matters.

Prove the best interest of the child, and it is safe to assume that you just won your case. Hoy v. Willis, 165 N.J. Super. 265, 276 (App. Div. 1978) ("At all times the best interests of the child should be the guiding principle and the paramount considerations are the child's safety, happiness and mental, physical and emotional welfare"); Matter of Baby M, 109 N.J. 396, 445 (1988) (the child best interests is "dispositive").

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B. Parent's Constitutional Rights.

"The right of a parent to the companionship of his or her child is so fundamental that it is guaranteed by the First, Ninth and Fourteenth Amendments to the United States Constitution." Wilke vs. Culp, 196 N.J. Super. 487, 496 (App. Div.), certif. denied, 99 N.J. 243 (1984). "It is well settled that the law favors visitation and protects against the thwarting of effective visitation rights." Id.

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C. The Child's Constitutional Rights.

Children may even have constitutional rights to maintain family related bonds if it is in their best interests.

While this Court has not yet had occasion to elucidate the nature of a child's liberty interests in preserving established familial or family-like bonds, … it seems to me extremely likely that, to the extent parents and families have fundamental liberty interests in preserving such intimate relationships, so, too, do children have these interests, and so, too, must their interests be balanced in the equation … The constitutional protection against arbitrary state interference with parental rights should not be extended to prevent the States from protecting children against the arbitrary exercise of parental authority that is not in fact motivated by an interest in the welfare of the child.

Troxel v. Granville,
530 U.S. 57, 88-89 (2000) (Justice Steven's dissenting).

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D. Public Policy/Both Parents are Equal.

"The Legislature finds and declares that it is in the public policy of this State to assure minor children of frequent and continuing contact with both parents after the parents have separated or dissolved their marriage and that it is in the public interest to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy." N.J.S.A. 9:2-4. "In any proceeding involving the custody of a minor child, the rights of both parents shall be equal". Id.

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E. Objections to Visitation Rights.

Child visitation may not be denied just because one parent objects, even if he or she vehemently objects. "The welfare of the child is the paramount concern in custody and visitation cases, … and even where the court must choose between a parent's right and the child's welfare it must favor the child by virtue of its responsibility as parens patriae." Cosme v. Figueroa, 258 N.J. Super. 333, 342 (Ch. Div. 1992). See also Borra v. Borra, 333 N.J. Super. 607, 612 (Ch. Div. 2000); In re Jeffrey R.L., 435 S.E.2d 162, 170 (W. Va. 1993) ("Although the rights of the natural parents to the custody of their child and the interests of the State as parens patriae merit significant consideration by this Court, the best interests of the child are paramount. Thus, as an initial matter, we emphasize that the health, safety, and welfare of Jeffrey R.L. must be our primary concern in analyzing the facts and issues before us"); Ricketts v. Ricketts, 1999 WL 1051967, *2 (Ark. App. 1999) ("Given that the best interests of the children are of paramount importance in child custody cases and that noncohabitation orders are intended to promote the children's best interests, to hold that a parent was estopped from raising cohabitation as a change in circumstances simply because that parent initially acquiesced to the cohabitation would punish the child for the parent's lack of diligence, and would abrogate the sovereign power of the state as parens patriae to see that the child's interests are protected.").

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F. Factors to Be Taken Into Consideration.

"In making an award of custody, the court shall consider but not be limited to the following factors:

[1] the parents' ability to agree, communicate and cooperate in matters relating to the child;

[2] the parents' willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse;

[3] the interaction and relationship of the child with its parents and siblings; the history of domestic violence, if any;

[4] the safety of the child and the safety of either parent from physical abuse by the other parent;

[5] the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision;

[6] the needs of the child;

[7] the stability of the home environment offered;

[8] the quality and continuity of the child's education;

[9] the fitness of the parents;

[10] the geographical proximity of the parents' homes;

[11] the extent and quality of the time spent with the child prior to or subsequent to the separation;

[12] the parents' employment responsibilities; and the age and number of the children.

A parent shall not be deemed unfit unless the parents' conduct has a substantial adverse effect on the child."

N.J.S.A. 9:2-4(c).

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G. Guardian Ad Litem.

"The court, for good cause and upon its own motion, may appoint a guardian ad litem or an attorney or both to represent the minor child's interests. The court shall have the authority to award a counsel fee to the guardian ad litem and the attorney and to assess that cost between the parties to the litigation." N.J.S.A. 9:2-4(c).

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H. Settlement Agreements.

"The court shall order any custody arrangement which is agreed to by both parents unless it is contrary to the best interests of the child." N.J.S.A. 9:2-4(d).

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I. Smoking.

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J. Third Parties/Boyfriends & Girlfriends.

If a third-party resides with a spouse seeking custody or visitation, that third party is material and relevant and may be investigated since it concerns the welfare of the children. Sheehan vs. Sheehan, 51 N.J. Super. 276, 288-89 (App. Div.), certif. denied, 28 N.J. 147 (1958).

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K. Religion.

The party having custody generally dictates the religious upbringing of the child. Esposito vs. Esposito, 41 N.J. 143, 146 (1962). See also Boerger vs. Boerger, 26 N.J. Super. 90, 105 (Ch. Div. 1953); T. vs. H., 102 N.J. Super. 28 (Ch. Div. 1968), aff'd, 110 N.J. Super. 8 (App. Div. 1970).

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L. Mental Health.

Psychological history is a relevant factor for the court to consider and the court may order relevant evaluations. Salmon vs. Salmon, 88 N.J. Super. 291, 307-08 (App. Div. 1965).

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M. Homosexuality.

Being a homosexual or a lesbian is not grounds to deny someone custody or visitation, but if the party, for example, is involved in political activism, that may affect the welfare and morals of the child, it becomes a relevant consideration. In re J.S. & C., 129 N.J. Super. 486, 489 (Ch. Div. 1974), aff'd, 142 N.J. Super. 499 (App. Div. 1976).

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N. Race.

Race considerations violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Palmore vs. Sidoti, 446 U.S. 429, 434 (1984).

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O. Keeping Siblings Together.

Keeping siblings together is not a statutory consideration, but in practice it is. No one wants to see siblings separated. S.M. vs. S.J., 143 N.J. Super. 379 (Ch. Div. 1976).

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P. Preference of the Child.

The court will consider the child's preference when the child can make an intelligent preference. When the child is old enough and capable of doing so will be a case by case determination 4. Van Haren vs. Van Haren, 171 N.J. Super. 12, 17(App. Div. 1979). This, however, is only one factor in many to take into consideration. Wilke vs. Culp, 196 N.J. Super. 487, 498 (App. Div. 1984), certif. denied, 99 N.J. 243 (1985).

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Q. Joint Custody.

Factors to consider in whether to award joint custody include whether the children would benefit from it, whether the parents are physically and psychologically capable of it, whether the parents exhibit a potential cooperation in the best interest of the children, their financial status, their employment, the age and number of children and the preference of the children. Mastropole vs. Mastropole, 181 N.J. Super. 130 (App. Div. 1980).

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R. Claims that a Parent is Unfit for Visitation.

There must be serious wrongdoing in order for a parent to not be entitled to visitation because the right to visitation is "strong" and "compelling". In re Adoption by J.J.P., 175 N.J. Super. 420, 430 (App. Div. 1980).

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S. Visitation After an Adoption.

New Jersey statutory law provides for visitation between siblings separated by adoption if it is in their best interests. "[A]ny sibling of a child residing in this State may make application before the Superior Court, in accordance with the Rules of Court, for an order for visitation." N.J.S.A. 9:2-7.1(a). There are plenty of caselaws to support this position, as well as to support a biological parent's right to continue visitation after adoption if it is in the children's best interests.

Kattermann vs. DiPiazza, 151 N.J. Super. 209 (App. Div. 1977) (case reversed where a biological mother was denied visitation rights without a plenary hearing to determine the best interests of the child), citing Sorentino vs. Family & Children's Society, 72 N.J. 127, 132 (1976);

In re Adoption of Children by F., 170 N.J. Super. 419, 425-26 (Ch. Div. 1979) (visitation rights granted between two children and biological father notwithstanding the children's adoption because it was in the children's best interests);

Matter of Guardianship of R.O.M.C., 243 N.J. Super. 631, 635 (App. Div. 1990) (stating in dicta that there are situations where compelling continued visitation in adoption cases may be in the child's best interests);

New Jersey Div. of Youth and Family Services v. B.G.S., 291 N.J. Super. 582, 598-99 (App. Div. 1996) (visitation denied due to no finding of it being required to advance the child's best interest);

Matter of Adoption of a Child by D.M.H., 135 N.J. 473 (1984), citing to Matter of Guardianship of J.C., 129 N.J. 1 (1992), (visitation denied due to no finding of it being required to advance the child's best interest, but citing to Supreme Court caselaw to the effect that such visitation must be Ordered when in the best interest of the children to do so).

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T. Psychological Parents/In Loco Parentis.

A third-party person, such as an ex-boyfriend or girlfriend, could obtain visitation with the former partner's children if it is in the best interest of the children. As before mentioned, prove that what you want is in the best interest of the children and you will have to prove little else. The argument in this regard will be the third-parent stands as a psychological parent of a sort to the child in question. The New Jersey Supreme Court's decision in V.C. v. M.J.B., 163 N.J. 200 (2000), is instructive as to when and how a person becomes a psychological parent to a child.

In that case, certification was granted "to determine what legal standard applies to a third party's claim to joint custody and visitation of her former domestic partner's biological children, with whom she lived in a familial setting and in respect of whom she claims to have functioned as a psychological parent." Id. at 205. The case's decision "is applicable to all persons who have willingly, and with the approval of the legal parent, undertaken the duties of a parent to a child not related by blood or adoption." Id. at 205-06.

V.C. concerned a lesbian couple where one of them, M.J.B., was artificially inseminated and gave birth to the subject child. Id. at 206. It was disputed whether both parties made the decision together for M.J.B. to undergo the procedure, but it was undisputed that they attended at least two sessions together and conducted all planning together during the eventual pregnancy. Id. They moved into a larger apartment, decided on the names together, and attended the birth together of the twins, and when they were born, one child was handed to each of them. Id. at 207. V.B. was treated by the hospital staff as also being a mother of the children. Id.

The parties then went about their lives living as a family. After the births, the parties decided that they would call M.J.B. "Mommy", V.C. "Meema" and V.C.'s mother and grandmother "grandma" and "great-grandma". Id. at 207, 209. They bought a house together and got "married" at a "commitment ceremony". Id. at 209. The parties joined the "Lambda family organization", the membership of which consisted of gay and lesbian families to aid the children in understanding that there are also other families who live under such circumstances. Id. They attended at least ten such sessions together. Id. The parties and the children attended family functions, holidays and birthdays together and they eventually consulted an attorney and paid a $2,000 retainer in order to have V.C. become a parent by adoption (which was never finalized). Id. at 209-210.

M.J.B. terminated the relationship just two months after they considered the adoption. Id. at 210. The parties then took turns caring for the children and living with them and V.C. contributed to the household expenses. Id. M.J.B. subsequently terminated the visitation sessions, however, and refused to accept additional money from V.C., claiming that the continued relationship was causing the children distress and that V.C. was not taking proper care of the children. Id. V.C. then initiated litigation for joint legal custody. Id.

At trial, the expert witnesses for both sides agreed that "the children view the parties 'as inter-changeable maternal mothering objects' and 'have established a maternal bond with both of the women'". Id. at 210-11. The trial court ultimately denied the petition for joint legal custody, however, finding that there were no equitable reasons supporting the application, V.C. failed to prove that M.J.B. was an unfit parent and that V.C. lacked standing to make the petition. Id. at 212.

On appeal, the Appellate Division affirmed as to joint custody, but reversed as to visitation. Id. at 212-13. "Relying on the experts' testimony, the majority concluded that V.C.'s continued contact with the children is in their best interests; therefore, it reversed the judgment denying V.C.'s petition for visitation and remanded for proceedings to establish a visitation schedule." Id. at 213.

In the midst of deciding the case, the Supreme Court adopted a test set forth in Custody of H.S.H.-K., 193 Wis. 2d 649, 533 N.W. 2d 419 (1995), for determining whether someone is a psychological, de facto parent. The Court wrote that:

The most thoughtful and inclusive definition of de facto parenthood is the test enunciated in Custody of H.S.H.-K. … Under that test,

[t]o demonstrate the existence of the petitioner's parent-like relationship with the child, the petitioner must prove four elements: (1) that the biological or adoptive parent consented to, and fostered, the petitioner's formation and establishment of a parent-like relationship with the child; (2) that the petitioner and the child lived together in the same household; (3) that the petitioner assumed the obligations of parenthood by taking significant responsibility for the child's care, education and development, including contributing towards the child's support, without expectation of financial compensation [a petitioner's contribution to a child's support need not be monetary]; and (4) that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.

* * * *

We are satisfied that that test provides a good framework…

* * * *

Prong one is critical because it makes the biological or adoptive parent a participant in the creation of the psychological parent's relationship with the child … [A] psychological parent, the legal parent must have … ceded over to the third party a measure of parental authority and autonomy and granted to that third party rights and duties vis-a-vis the child that the third party's status would not otherwise warrant …

* * * *

… The third prong … is not contingent on financial contributions … [which] may be considered but should not be given inordinate weight … the assumption of a parental role … is determined by the nature, quality, and extent of the functions undertaken by the third party and the response of the child to that nurturance.

* * * *

… the fourth prong is most important because it requires the existence of a parent-child bond ... What is crucial here is not the amount of time but the nature of the relationship. [A] determination will have to be made about the actuality and strength of the parent-child bond. Generally, that will require expert testimony.

Id. at 223-224 & 226-227, quoting, in part,
Custody of H.S.H.-K., 533 N.W. 2d. at 421.

If the third-party stands in loco parentis to the child, that person may be considered to be the child's psychological parent. "'The proper definition of a person in loco parentis to a child is a person who means to put himself [or herself] in the situation of the lawful father [or mother] of the child with reference to the father's [or mother's] office and duty of making provision for the child.'" Cumberland County Bd. of Social Services vs. W.J.P., 333 N.J. Super. 362, 366 (App. Div. 2000), quoting D. vs. D., 56 N.J. Super. 357, 361 (App. Div. 1950).

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III. ATTORNEY'S FEES AND COSTS OF SUIT

New Jersey Rule of Court 5:3-5(c) enumerates various criteria to be considered by the court in deciding whether an award of counsel fees should be paid by an adversary party. Those circumstances are,

(1) the financial circumstances of the parties;

(2) the ability of the parties to pay their own fees or to contribute to the fees of the other party;

(3) the reasonableness and good faith of the positions advanced by the parties;

(4) the extent of the fees incurred by both parties;

(5) any fees previously awarded;

(6) the amount of fees previously paid to counsel by each party;

(7) the results obtained;

(8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and

(9) any other factor bearing on the fairness of an award.

Id.

Ability to pay is just about everything in family law cases. All of the available New Jersey caselaws provide that a party cannot be Ordered to pay for any kind of services, including those of a guardian ad litem or a psychologist absent evidence of an ability to pay.

One case in the context of a divorce is Gyimoty v. Gyimoty, 319 N.J. Super. 544 (Ch. Div. 1998). There, the issue was the plaintiff's refusal to make payment to the guardian ad litem and what remedies are available to the court under such circumstances. The court, after determining the party's ability to pay, began fining the plaintiff $20.00 per day until compliance was made.

Imposition of a reasonable monetary sanction to coerce plaintiff to comply with the prior orders of this court for payment of his share of the fee of the guardian ad litem seems particularly appropriate in this case because of the nominal fee charged, the undue expense which the guardian would have to incur to enforce the order, the plaintiff's financial ability to pay his share of that fee and the contumacious refusal of the plaintiff to pay the fee or make any of the court ordered installment payments of $65 per month.

Id. at 555.

Another case is P.T. v. M.S., 325 N.J. Super. 193 (App. Div. 1999). That was another case where an order was reversed that required a mother to pay psychologist fees in order to facilitate a relationship between her ex-husband and their child. No ability to pay had been established before entering the order.

The record does not support the conclusion that M.S.'s failure to pay Dr. Weitz's fees was willful, or that she had the ability to pay the fees in full and in advance. The court made no findings as to M.S.'s ability to make payments, or the reasonableness of the payment arrangements Dr. Weitz demanded. The court simply stated that there was no legitimate excuse for the earlier failure.
Id. at 218.

The law is very clear that without proving an ability to pay, a fee award cannot stand.

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CRASH COURSE IN FAMILY PROCEEDINGS FROM A-Z

A. Step One: Drafting and Filing the Initial Pleading.

1. Complaints.

If you are the plaintiff complaining party, the first step in any litigation is to draft and file the Complaint. The Complaint must be filed along with a Summons and a Certification of Verification and Non-Collusion. Various sample complaints are provided with this book in Microsoft Word format, along with summons and Certifications of Verification and Non-Collusion.

2. Answers.

If you are a defendant, the first step is to file an Answer. A sample answer is provided with this book in Microsoft Word format. In your answer, you will go line by line through the complaint and number your paragraphs exactly the same as in the complaint. You will admit, deny or say that you lack enough information to admit or deny each statement made in the complaint. You can provide several answers to each paragraph of the complaint because each paragraph may contain several different assertions.

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B. Step Two: Serving the Complaint.

If you are the plaintiff, after you file your complaint with the court (an original and one copy), you must serve your complaint upon the adversary. If you are the defendant, you have to mail it via Certified Mail Return Receipt Requested. You must have a subpoena server serve the complaint upon the defendant. Call your county sheriff's office for assistance with this.

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C. Step Three: Motions.

Once the defendant files an Answer, either the plaintiff or the defendant can begin making motions. Motions that may be made at this early stage of the game include those for temporary support, assistance with paying attorney's fees, visitation or custody, exclusive possession of the marital home or whatever else is needed. Motions for anything may be made, but usually they are premature at this stage except for motions of this type. Accompanying this book are various forms in Microsoft Word Format for filing motions. Just tailor them and change the wording to fit your needs.

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D. Summary Judgment Motions.

Just about all motions are the same, except for summary judgment motions. With summary judgment you are mandated to file a legal brief in support of the motion. If you are the plaintiff you must list all of the undisputed facts entitling you to relief, and if you are the defendant, you must file a list of all of the facts that are undisputed. You must read Brill vs. The Guardian Life Insurance Co. of America, 142 N.J. 520 (1995), before handling a summary judgment motion. A copy of it is contained in this appendix. It will explain the motions to you in detail. Sample Statements of Disputed and Undisputed Facts are submitted with this book in Microsoft Word Format.