printer-friendly version-Steps To A Divorce
STEP 4 - WHAT HAPPENS IF WE CANNOT SETTLE BETWEEN THE FILING OF THE COMPLAINT AND THE TRIAL?
(A) Pendente Lite ("during the suit") Motions - You most likely will deal with the issues of support, custody, and equitable distribution. A pendente lite motion is a way of asking a court for help while awaiting the final divorce. Suppose your spouse is not giving you any money for alimony or child support. Then, you can ask the court for temporary assistance by way of a motion. You'll need to submit a supporting certification and a Case Information Statement. Your spouse will also submit a certification and the court will make its decision based upon the information before it.
1. For child support, the court will look at each party's income. Using the Child Support Guidelines, the income information will be used to determine how much each spouse needs to pay for child support. The Guidelines are based upon the cost of raising children in an intact family using New Jersey's income distribution formula. Child support includes the child's share of expenses for housing, food, clothing, transportation, entertainment, unreimbursed health care, personal care products and services, and books and magazines. Added to the amount calculated for basic child support, payments will be the cost of child care and health insurance and other predictable and recurring expenses for children such as the cost of private schooling.
2. Custody - Here are some terms:
Joint Legal Custody: Both parents share in all decision-making for their children.
Sole Custody: Only one parent makes decisions.
Parent of Primary Residence: The parent with whom the children live.
Parenting Time: Visitation.
Custody is a very difficult issue. Before your divorce is final, the Court will try to maintain the status quo provided the children are not in any danger. Sometimes this is not possible. I had one case where there was so much hatred between the parties that the judge ordered that the child stay in the house while the parents left on alternate weeks.
Mediator - Every contested custody case is assigned to mediation. First, there is a joint workshop with other parents, but this does not deal specifically with your matter. Then a mediator will schedule an appointment for you. It is mandatory that you attend. The first three hours are free. If you are unable to reach an agreement during those three hours, you may schedule another appointment at your own cost. If all fails, psychological experts will have to be retained and the child, if over 9 years of age, will be interviewed by the judge and there will be a trial. The court will make a determination based upon the experts' recommendations and the factors set forth in N.J.S.A. 9:2-4C.
Alimony - Before your divorce is final, the court may order one spouse to pay the other alimony, pendente lite. This alimony is the duty of support owed by one spouse to the other while the divorce action is pending. Its amount, if any, will be based upon the existing family life style, each spouse’s need, and ability to pay.
A court can award permanent alimony, rehabilitative alimony, reimbursement alimony, and limited term alimony. Permanent alimony is usually awarded where there has been a long term marriage and the supported spouse is either not working or does not earn sufficient income. Rehabilitative alimony is awarded so that the supported spouse can update his or her job skills with an eye toward earning a living. A spouse can be awarded rehabilitative alimony as well as permanent alimony. Reimbursement alimony is a pay back for supporting your spouse while she/he was getting an education. Limited term alimony is an award for a term of years.
In order to determine alimony, a court will look at statutory factors set out in N.J.S.A. 2A:34-23b. These include such considerations as the needs of each spouse, their ability to earn an income. their ability to pay alimony, the length of the marriage, and the age and health of the parties.
4. Equitable Distribution - Any asset acquired during the marriage is subject to equitable distribution. It does not matter in whose name the asset is, or who paid for it. Marriage is viewed as a joint partnership with each person contributing. Inheritances are exempt from equitable distribution unless the asset was placed in joint names or commingled with marital assets. For example, if the husband inherited a house and it was used as the marital home during a 20 year marriage, the court will likely rule that the house is subject to equitable distribution.
