A NJ matrimonial law attorney certified by the Supreme Court of New Jersey and associate author of the New Jersey Family Law Practice, Bari Weinberger is uniquely qualified to speak about some misconceptions people have about divorce.
Did you know that half of all marriages in America end in divorce? The process of getting a divorce is generally unpleasant and complex because of the legal and emotional issues involved with child custody and finances. The fact that the stakes are so high makes it crucial that you are prepared for your divorce proceeding. Many myths are floating around about divorce law. This article is intended to set the record straight on some of the most common myths.
Myth: Usually the husband files for divorce.
Fact: Approximately two-thirds of divorces in America are initiated by women, according to the National Center for Health Statistics, corroborating another statistic which states that overall, men are happier in marriage than their counterparts. However, after divorce, men are just as likely to get remarried as women.
Myth: A lawyer is not need for the mediation process.
Fact: In mediation, you need to be aware of all your legal options and rights. An attorney can walk you through the negotiations, help you settle the case and take care of the paperwork, including the preparation of your final divorce settlement agreement.
Myth: Punitive damages are awarded for adultery.
Fact: In the state of New Jersey, adultery is a ground by which you can file and achieve a divorce. However, the N.J. family courts will not impose an economic penalty for having committed adultery. As such, there is no economic benefit to having been the victim of unfaithfulness. The spouse who engages in an extramarital affair will not be left to make payments for his wrongdoing. The only type of monetary compensation is in the form of reimbursements for proven marital money having been spent on the paramour. The courts do not impose sanctions upon an unfaithful spouse in an attempt to avoid unnecessary mudslinging. This approach generally helps foster a quicker settlement.
Myth: If a child is involved in a divorce, the mother will get custody.
Fact: The New Jersey family courts have evolved to provide equality for both men and women going through a divorce and child custody dispute. Neither party is perceived to have an advantage over the other. The laws are gender neutral. Accordingly, each parent starts the process with the same parental recognition. Various factors will be considered to determine if one parent should have greater custody rights over the other.
Myth: All assets and debts are divided in half as a matter of law.
Fact: In certain states, it is understood that the assets and debts will be equally divided in a divorce no matter what the circumstances of the case. New Jersey divorces function differently in that New Jersey is an “equitable distribution” state. This essentially means that there will be a fair and reasonable distribution of all marital assets and debts, not necessarily an equal division.
Myth: In mediation, the mediator decides what is fair.
Fact: People often confuse mediation with arbitration. Arbitration is a process whereby a professional arbitrator serves as a decision maker after having conducted an informal hearing (as opposed to what transpires in court). Mediation, on the other hand, is a neutral, non-binding settlement process where the professional divorce mediator serves only as a facilitator to help enable the parties to reach a mutually agreeable resolution. Mediators do not make decisions nor do they provide legal advice. During the mediation process, the mediator’s role is to provide both guidance and assistance to the parties so that they may reach a settlement on their own terms.
Myth: Retirement plan and pension benefits belong to the employed spouse.
Fact: If the retirement plan or pension increased in value due to work or services performed during the marriage, then the value of those contributions may be considered marital assets and therefore distributable in a divorce. Generally, if work was performed during the marriage (from the date of the marriage to the date of the filing of the complaint for divorce) that portion is subject to division irrespective of which spouse’s name is listed on the asset.
Myth: Visitation can be withheld if child support is not paid.
Fact: If there is a failure to pay court ordered child support, there are legal remedies to help you receive reimbursement for these arrears. There is no allowance for one parent to withhold the child from planned or court ordered visitation as a punishment to the defaulting parent. This self-help approach is frowned upon by the court.
Myth: Men are not entitled to alimony/spousal support.
Fact: Alimony and spousal support awards are gender neutral. There are numerous occasions where a woman will need to pay alimony especially in situations where there is a long-term marriage and there is a large discrepancy in earned income favoring the wife. For example, there are circumstances where the father is a stay-at-home dad, while the mother is a career woman and the breadwinner of the family. In these situations, there will likely be a spousal support obligation on the part of the woman.
These are just a handful of the many myths that people have about the divorce process. It is a complex area of law. The results of your divorce will likely impact your life for a long time to come so take the time to learn about your rights and consult a New Jersey family lawyer if you are considering a divorce.
This article is for informational purposes only. You should not rely on this article as legal advice, and you should not act upon this information without seeking professional counsel. Publication of this article and your receipt of this article does not create an attorney-client relationship.
