Every divorce case is both fact-sensitive and people sensitive. I often joke that although I’ve “been divorced” (on behalf of my clients) hundreds of times, even I will invariably find something unique about each case.
There are certain “surprises” however, that are much more common. Learning the below list will help take some of the guess-work out of your divorce.
Common Divorce Surprises
1. “Fault” Isn’t That Important. You may be shocked to learn that “marital fault” is often unimportant in terms of dividing marital assets or even with regard to issues of parenting time. For instance, if one party committed adultery, it’s generally not going to make much of a difference in the divorce negotiations or to a family court judge, provided that the affair doesn’t in some way negatively impact the children (example: spouse is now dating someone with criminal background or history or drug abuse, alcohol abuse, or child abuse).
2. The Laws are (Essentially) Gender Neutral. If the breadwinner of the family is the woman, then she will (provided the laws are properly followed) likely be paying alimony. As for parenting time, the biggest factors will be past history of care for the children, not whether you are a mother or a father. In today’s modern courtrooms, gender neutrality is becoming more the norm—not just in theory but in practice.
3. There’s Probably Not a Conspiracy. I’ve had a lot of clients tell me that their ex is “well connected so they are probably getting special treatment from the court,” or that they think a “certain judge favors [men] or [women] or [etc.],” but in reality, such issues are rare or completely non-existent based upon my own experiences. It doesn’t mean people are always treated fairly or that the proper decisions are always rendered—-but it does mean that the reasons behind such issues are almost certainly not nefarious.
4. The Judge Likely Won’t Speak with Your Children. If there is a custody issue and your child is under 13 years old, few if any judges will be willing to hear the child’s custody preferences, even off the record. This issue is up to the discretion of the judge– and once a child is 14-18 years of age more judges will allow such a meeting—but most judges prefer to keep children out of the courtroom.
5. You Can Sue or Be Sued for a Marital Tort. Under the Tevis v. Tevis case New Jersey Courts recognize “marital torts.” Accordingly, you can sue for “personal injuries, physical or emotional” as part of a complaint for divorce. The process is similar to suing for other forms of personal injury.
6. Children May Not Be Emancipated at Age 18 (or even 21). The basic emancipation standard in New Jersey is whether a “child” has moved beyond the “sphere and influence” of his or her parents. Unlike in Pennsylvania, parents might be required to pay for college (or even graduate school) for their children, along with basic child support and other expenses. This is a fact-sensitive inquiry. Although there is a presumption of independence at eighteen (or graduating from high school), you will find it is rarely enforced unless a child is truly on their own and not attending additional schooling.
7. Lawyers Cannot “Represent” Both Parties. Sometimes a prospective client will call me up and ask if I will draft a settlement agreement for a divorce. They want me to codify what both parties’ wish for their divorce or to have both parties come in to meet with me. This presents a conflict of interest and I won’t do it. That’s why I will only represent one party and recommend that each party have their own, independent legal advice.
8. Grandparents Often will have no Right to “Grandparent Visitation” Without a Court Order (and even that will be difficult to obtain). A parent’s right to parent their children will supersede any right a grandparent thinks they have to visitation.
9. Divorces Can Take 1+ Years to Complete. Particularly in complicated or contested divorces, one or more years is the rule, not the exception. This is another reason why it’s important for you to negotiate and to do so in good faith. If both parties agree to the divorce terms you can be divorced in a matter of weeks rather than years.
10. Prenuptial Agreements are Becoming More Common. Today, I see a lot of clients inquiring about prenuptial agreements, which are no longer in the purview of movie stars, tycoons, or celebrities. Prenuptial agreements will continue to become more the purview of the everyday couple contemplating marriage. The bonus tips is that even with a prenuptial agreement in place such documents will often be challenged as part of the divorce process.
Partner with Carl Taylor, Esq.
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