|
1. What is an uncontested divorce?
2. What is a legal separation (property
settlement agreement),
and
how can ABCDivorces.com help in me?
3. Why doesn't ABCDivorces.com handle contested matters?
4. I understand that ABCDivorces.com can not provide legal
advice. Where can I go for
legal advice if I need it?
5. What should we be concerned with when we discuss our
divorce or legal separation settlement?
6. How are child custody and visitation issues decided?
7. What is Joint legal
custody and how is it different form
sole custody?
8. How does physical custody work?
9. How does joint custody affect children?
10. Does joint custody increase conflict between parents?
11. How does joint custody affect child support?
12. How is child support determined?
In New Jersey:
In New York:
13. How are retirement funds divided?
14. Is a court appearance required?
----------------------------------------------------------
1. What is an uncontested
divorce?
An uncontested divorce is one in which the parties do not desire
to fight and therefore will not contest (fight) the action. In many
of these divorces the parties are still friendly and are able to work
things out. If there is anything to sort out; they can do it. If there
are children they work out a fair visitation schedule and are not
fighting over custody. They do everything to avoid going to trial
and permitting the Court and two lawyers make a decision that may
make both unhappy. Most people are please to discover that there
is an "alternative to the old problem." When a decision is
made to
have an uncontested divorce everything moves faster and less
expensive. Both husband and wife maintain control over their futures
by reaching their own decisions. Many times the parties are able to
maintain (or reestablish) a civil relationship. The friendly manner in
which the divorce is processed goes a long way in helping divorced
parents jointly raise their children.
An uncontested divorce agreement can be accomplished through direct discussion between the parties or negotiation between their attorneys. Some people prefer to use mediation; however in many cases, unless there are lot's of assets, mediation may prove to be more expensive than the divorce. Back to Top
2. What is a legal separation (property settlement agreement), and how can ABCDivorces.com help me?
A legal separation (in NY state) or a property settlement agreement
(in NJ state) is an agreement which is permits a husband and wife
to remain married while living separately. The agreement specifically
establishes each party's rights regarding custody, visitation, support,
and property distribution. In New York, after one year of legal
separation, you may use the fact that you have complied with the
agreement as a ground for divorce. This is the closest to a no-fault
divorce that New York has to offer.
New York requires that a legal separation be
obtained and the parties
legally separated before a no-fault divorce can be granted.
There are many reasons that a party may wish to be legally separated
before getting the divorce. Sometimes the parties are not quite ready
for a divorce, or they may have religious objections to divorce or in
States like New York they may prefer to stay separated for the required
period in order that they can use a no-fault type for grounds for divorce,
instead of the fault based reason required with the other grounds.
ABCDivorces.com can provide you with a ready to notarize agreement
specifically tailored to your case. Back to Top
3. Why
doesn't ABCDivorces.com handle contested matters?
Whenever you get involved with litigated court actions, it becomes
complicated and uncomfortable. Some people try to do handle this
type of case on their own; however this is usually not the best
action in a divorce. Once the divorce is contested or when there
are complicated issues people should not handle such matters
themselves. It is our belief that it should be handled by an attorney.
Your future or your children's future may be affected in a negative
way if you are not careful. Experienced legal assistance is usually
necessary.
If your spouse is represented by an attorney, if you are
involved
in an abusive relationship, if your divorce involves financial issues
which you do not understand, or if you do not agree on any major
issue, consult an attorney. If you do not know an attorney your
best bet is to call the Lawyer Referral Service of the County Bar
Association. They will provide you with a lawyer and the initial
consultation will be reasonable. Sometimes just one consultation
with a lawyer clarifies your case and enables you to use the
services of a forms preparation service, such as ABCDivorces.com. ABCDivorces.com is here to help with the relatively simple divorce
wherein the parties are able to reach their own decisions. We do
not provide the legal advice which a contested matter demands. Back to Top
4. I understand that ABCDivorces.com can not provide legal advice. Where can I go for legal advice if I need it?
As with any professional it is always best to get a recommendation
form someone you trust. However, if you do not know anyone that
can recommend an attorney to you, your best alternative is the
local bar association. Every bar association has a lawyer referral service, wherein they provide you with a lawyer
experienced in your area of need. In some states there are certified
matrimonial lawyers that have taken extensive testing and has
significant experience in the area. These lawyers generally charge
more than those not certified. If your case is one that there is not
much assets to fight over then you would probably find it just as
good to get a referral from the bar association. In some cases
you can have the lawyer write up the separation agreement and
then have ABCDivorces.com process your uncontested divorce.
Thereby saving a lot of money. Back to Top
5. What should we be concerned with when we discuss our divorce or legal separation settlement?
It depends on the assets you own and whether there are children.
Decisions have to be made on the distribution of the assets; whether
real property or personal property. Also to consider is distribution of
debt, health insurance, and tax issues. With children, there must be
a decision on custody, visitation and child support. ABCDivorces' application will help you to identify the
issues
associated with your specific situation. Back to Top
6. How are
child custody and visitation issues decided?
This can be done by a friendly agreement or you can let the
court make the decisions for you.
Whenever there are children, the courts carefully study
the
child custody agreements more closely than other agreements.
However, most courts feel that parental decisions should be
honored unless they are clearly contrary to the children's best
interest. The court believes that unless shown otherwise, the
parents are in the best position to understand their children's
needs.
Contested child custody issues are the most difficult for the
court
to decide. In these cases, the children are generally represented
by a Guardian ad Litem who is appointed by the court. The
guardian conducts an investigation and makes custody
recommendations to the court. The court generally hears
evidence at trial pertaining to, among other factors, the parenting
skills of each parent, the bond between the children and each
parent, the bond among the children, and the ability of each
parent to recognize the importance of the other parent to the
children. If the children are of an appropriate age to be
consulted- usually over 14-, their wishes are important and
considered.
In an uncontested situation, it is advised that the parents
should consider the same factors in reaching custody decisions.
Back to Top
7. What is Joint legal custody and how is it different form sole custody?
Joint legal custody gives the non-residential parent the right
to participate in major decisions about the children's upbringing.
In the traditional sole custody arrangement, the non-custodial
parent has a right to a limited amount of contact with the child,
and the requirement to pay child support. There are
disadvantages to the non-custodial parent for example, that
parent cannot access his or her own child's medical records
without the custodial parent's permission. Joint legal custody
does not affect the child's living arrangements. Often it is
granted with the standard residence arrangement, in which
the child lives with one parent but is permitted to visit the
other parent certain days per month.
Many states presume that joint legal custody is in the child's
best interest. In those states, the court must award joint legal
or make a specific finding that joint legal custody would be
detrimental to the child. A denial of joint legal custody might be
based on a finding that the parties have such extreme
communication problems that they can not work together for
the benefit of their children. Back to Top
8. How does physical custody
work?
In an uncontested situation, the court will usually approve
shared physical custody arrangements which divide the child's
time with the parents roughly equally. With joint physical custody
(also called shared parenting), the child lives with both parents,
often on an alternating week basis. Joint physical custody is
usually defined as a schedule where the child has at least a
30/70 time share between parents, although 50/50 arrangements
are common. Joint physical custody is almost always accompanied
by joint legal custody.
Generally a court will not award joint physical custody
in a
contested situation. Back to Top
9. How does joint custody affect children?
The available research has found joint physical custody to be better for children than sole custody by a wide margin while the rest indicates no difference between the two. The critical factor appears to be the relationship between the parents; whether they have conflicts and the magnitude of these conflicts. When there is a high degree of conflict between parents, joint custody and sole custody produce similar outcomes for children. In cases were there is relatively little conflict between parents, joint custody results in better outcomes for children, i.e., they have fewer emotional problems, do better in school and less delinquency than children in sole custody. Back to Top
10. Does joint custody increase conflict between parents?
No. Studies have shown that conflict is either reduced or is the same with joint custody. It is generally understood that custody fights are conflicts over who will raise the child, so the reduction in conflict with joint custody may result from the continued participation of both parents in raising the child. Back to Top
11. How does joint custody affect child support?
There is no affect on the finances of child support
calculations when there is Joint legal custody as
opposed to when one parent has sole physical custody.
With joint physical custody there is still a payment of
child support from the higher income parent to the
lower income parent. Usually determined by a sliding scale chart
based on time with each parent.
State guidelines are normally constructed so that the
financial support going to the child is the same for
joint physical custody as for sole physical custody.
Because both parents provide for the child directly
with joint physical custody, the payment between
parents may be less, but the material needs of the
child are provided for as well or better with joint
custody as compared with sole custody. Back
to To
12. How is child support determined?
Every state has child support guidelines which determine
the amount of child support to be paid.
a) How is child support determined in New Jersey?
New Jersey, similar to many other states, has "Child Support Guidelines" that apply a percentage to the total available income of both parents. Using the fraction of the total income that you (or the other parent) earn, child support is calculated. These guidelines have been effective since September 1, 1997.
The guidelines now provide the child support award for all combined incomes up to $150,800.00 per year ($2,900.00 per week). If the income is above that level, the Judge has the discretion as to how much additional support should be ordered.
b) How do I calculate the amount of child support?
You can approximate your child support obligation (or the amount that you will be receiving) by applying the paying parent's (Parent of Alternate Residence, or PAR) income to the Guidelines. They are available here.
However, to get a more accurate amount, complete a Child Support Worksheet, available on this site or at the Family Court. You could get a quick estimate of the amount; you can approximate that by knowing the PAR's net income, and looking at the following chart:
|
|
|
$500/week |
$1000/week |
$2000/week |
* |
one child |
|
24.0% |
21.4% |
17.3% |
* |
two children |
|
34.9% |
30.9% |
24.9% |
* |
three children |
|
41.3% |
36.3% |
29.3% |
* |
four children |
|
45.6% |
40.1% |
32.3% |
* |
five children |
|
49.5% |
43.5% |
35.0% |
* |
six children |
|
52.9% |
46.6% |
37.5% |
c) What if this amount does not cover expenses?
In most
every divorce the finances are difficult for both
parties. However, it is important to recognize that the
guidelines include certain expenses, such as:
a. housing
(mortgage or rent, repairs, school
or college housing, utilities, domestic help,
lawn care, gardening, pest control, laundry
and dry cleaning, furniture, appliances, and
others);
b. food
(including non-alcoholic beverages,
and food purchased away from home);
c. clothing
(except for special-needs clothing
for sports);
d. transportation (including car payments
and insurance);
e. unreimbursed health care (up to $250.00
per year per child);
f. entertainment (fees, memberships, admissions
to sporting events, etc.); and
g. miscellaneous items such as personal care
products, magazines, etc.
The Court can make an additional allowance for such
expenses as:
h. child care
expenses, including day care, day
camp in lieu of day care;
i. health
insurance (the additional cost to
insure the child/ren only);
j. predictable
and recurring health care
expenses in excess of $250 per year
per child (such as orthodontia and counseling);
k. other
expense approved by the Court,
such as private schooling, special needs
of gifted or disabled children, and
visitation transportation expenses.
d) Can the child support amount be increased after
the divorce has been granted?
You can file a "motion" asking the Court to modify the most recent Order or Judgment based on a substantial change in circumstances and the best interests of the child/ren. You can simple do this by walking in to the Family COurt in your country and filing out some forms. On the court date you woudl bring in proof that there has been a change in your circumstances. such as you are unemployed and collecting unemploymentinsurance.
e) My ex-spouse is delinquent in child support payments. How can I enforce the court order?
In all states ther is a process. Usually you can do this at the Family Court without needing lawyer's assistance or you can bring the motion directly to the court that grranted your divorce. In New Jersey, you can bring a Notice of Motion to Enforce Litigant's Rights (contempt of court) proceeding and ask for a wage execution, and other potential sanctions. Among the sanctions, N.J.S.A. 2A:17-56.23a provides that child support payments become a "judgment" automatically on the date that they are due. This means that the non custodial parent could see a negative rating appear on his credit report. It specifically authorizes the denial, suspension or revocation of a driver's license, or other professional or vocational license if there are child support arrears equal to six months worth of support.
f) The procedure sounds complicated, and I can't afford a lawyer. What can I do?
You
don’t need a lawyer. All you have to do is go to
the family court and bringing the divorce decree or
order. The Support Enforcement Unit of the County
Probation office will handle your case. This is the
State agency responsible for the enforcement of
support orders. They are usually located in the
County courthouse.
g) What happens if the paying parent moves out of state? Can I still enforce the judgment?
Of course you can. Your New Jersey support order is valid in all other states. You can go to the other state's court to enforce the obligation. However, most people just go to the local Family Court and obtain a "reciprocal" or URESA petition. This is not a complicated process and the Court staff will assist you with this. Be aware that these actions can several months.
h) My ex spouse is threatening to file bankruptcy. Can he avoid paying child support if he is in bankruptcy?
No way.
The Federal Bankruptcy Code exempts child
support obligations and alimony from the debts that
are dischargeable in bankruptcy. That means that
even if your "ex" files for bankruptcy, he will still
have to pay you and the children the previously
ordered support.
i) In my original judgment child support ends at 18. My son is a full-time student at a local college. Is there any way to continue child support while he is in college?
This is
possible. Support does not automatically
stop just because your son turns 18. Your "ex"
must first file a motion to terminate the support
he is paying for your son. If your son is a full-time
student in good standing, the Court may determine
that he is still a dependant, and require your
husband to pay child support, contribute toward
college costs, or a combination of the two.
j) Do I have to report my child support payments as taxable income on my income tax returns?
No. Child support is not "income" on either the state or federal levels.
k) What do PAR and PPR mean?
Under the revised guidelines, these are two new terms. PPR is the parent of primary residence, and PAR is the parent of alternate residence. Either parent could be the parent who is obligated to pay support based on the time sharing arrangement and the incomes of the parties. The PPR is the parent with whom the child spends at least 50% of his time. If the child is with both parents the same amount of time, it is the parent whose address is used for schol purposes.
l) How doest the guidelines take into account our "visitation" schedule?
If the PAR has the child for at least 28% of the time, and the PAR can show that he/she provides separate living accommodations for the child during overnights, the Court is then permitted to determine if there should or should not be a credit given for expenses incurred on the child's behalf.
The Court cannot calculate this "shared-parenting" child support amount if:
a. the PPR's weekly net income is less than double the current U.S. poverty line based on the number of people living in that home; or
b. the Court determines that the net income in the PPR's household that would remain after the "shared-parenting" calculation would be insufficient to maintain the household for the child.
For 1998, the Primary Household Net Income Threshold(2.0 times 1998 Poverty Guideline) is as follows:
Shared-Parenting Primary Household Net Income Thresholds (2.0 x 1998 Poverty Guideline) |
||
Total Persons in Household |
Weekly Net Income |
Annual Net Income |
2 |
$417 |
$21,684 |
3 |
$525 |
$27,300 |
4 |
$633 |
$32,916 |
5 |
$740 |
$38,480 |
6 |
$848 |
$44,096 |
7 |
$956 |
$49,712 |
8 |
$1,064 |
$55,328 |
a) When does child support stop in New York?
A parents liability for the support of his or her children is limited to children under the age of 21. In the absence of an express or implied contract, parents generally have no duty to support an adult child. For custody, visitation and other purposes, the age of majority is age 18, but for purposes of the a parent's support obligation, the age of majority remains at 21. Of course, a parent's duty to provide reasonable child support is not absolute. The duty may be terminated before a child is 21 if the child becomes emancipated by obtaining a full-time job which pays enough that the child can truly be considered to be financially independent, by marriage or entry into the armed forces. Under certain limited circumstances, a parent's duty to pay child support may also terminate if the child refuses, without just cause, to submit to reasonable parental authority.
b) How is child support calculated?
-
The Child Support Standards Act ("CSSA") provides that the court shall calculate the "basic child support obligation", and the non-custodial parent's pro rata share of the"basic child support obligation". Unless the court finds that the non-custodial parent's pro rata share of the "basic child support obligation" is unjust or inappropriate, after considering ten statutory factors, it must order the non-custodial parent to pay their pro-rata share of the "basic child support obligation". In arriving at the "basic child support obligation" the Court must calculate the "combined parental income" and multiply it by the appropriate "child support percentage.""Income" is defined as "gross income as was or should have been reported on the most recent federal income tax return". There are required deductions from gross income for social security and New York City and Yonkers income taxes. The law contains provisions for additions to "income" and deductions from "income".
The "child support percentage" is:
-
17% of the combined parental income for one child;
-
25% of the combined parental income for two children;
-
29% of the combined parental income for three children;
-
31% of the combined parental income for four children; and
-
no less than 35% of the combined parental income for five or more children.
Where there are five or more children, the court must exercise its discretion in fixing the amount of the child support percentage. Where the combined parental income exceeds $80,000 per year, after the court determines the non-custodial parent's share of the "basic child support obligation", it must next determine the amount of child support for the amount of combined parental income in excess of $80,000. It may do so, in the exercise of its discretion, through consideration of ten discretionary factors and/or the child support percentage.
There are two additional items of support which are part of and which the court must consider in determining the "basic child support obligation" and two items it may consider in determining the non-custodial parent's share of the "basic child support obligation":
When a custodial parent is working or receiving education leading to employment, reasonable child care expenses must be apportioned pro rata, in the same proportion as each parent's income is to the combined parental income.
In addition, the Court must fix the non-custodial parent's pro-rata share of the child's future reasonable health care expenses not covered by insurance, prorated in the same proportion that each parent's income is to the combined parental income and the non custodial parent's pro rata share must be paid in the manner determined by the Court.
The Court may also make an award directing the non custodial parent to pay the costs of present or future post-secondary, private, or special education for the child. The non-custodial parent will pay these expenses in the manner determined by the Court. This provision is discretionary. When the Court determines that the custodial parent is "seeking work" and incurs child care expenses as a result, it may determine reasonable child care expenses and apportion them between the custodial and the non-custodial parent. The Court can direct the manner of such payment. This provision is also discretionary.
The CSSA mandates that
a minimum of $25.00 per
month be fixed as child support even if the
non-custodial parent is unemployed and has no
income or assets.
Can my spouse and I
agree to amounts that are
different from the amount of child support required
by the "CSSA" guidelines?
Yes. You and you
spouse can waive the provisions
of The Child Support Standards Act provided that
you do so in writing, and the agreement contains
certain required language demonstrating that you
have been advised as to the amount of child support
that would have to be paid were the CSSA guidelines
being observed, and further, the agreement lists the
reason or reasons that it does not provide for
payment of that amount. This provision may not be
waived by either party or their counsel. Back to Top
13. How
are retirement funds divided?
Distribution of retirement funds requires special attention so that
the tax advantages associated with such funds will not be
inadvertently lost. If a retirement fund has to be distrusted it
is recommended that you consult with an attorney. In these cases
a Qualified Domestic Relations Order, or QDRO, is required. A QDRO
is a document which transfers a share of retirement funds from
the spouse participating in the retirement plan to the
nonparticipating spouse. A QDRO is intended to transfer the agreed
upon portion of the fund to the nonparticipating spouse while
protecting the tax benefits which make these funds such attractive
investments. Back to Top
14. Is a court appearance required?
New York: In most counties there is no court appearance. You merely have to file you forms with the matrimonial clerk. They review the papers and you pay the filing fees. About 8 weeks later you will receive a postcard. Usually it will say that you have been divorced and that you may pick up your divorce decree. A few of the smaller counties still has a court appearance. In these counties you appear at the scheduled date, the clerk gives you a form that read the important facts to the judge. He reviews the papers, perhaps asks you a couple of simple questions and grants the divorce. Your spouse does not have to appear.
New Jersey: Most counties in New Jersey requires a court
a short appearance. You will have to submit your completed
divorce forms to the court and they will schedule a court date.
On the court date your spouse does not have to appear unless
she wishes to resume her maiden name. You receive your
certified decree the same day. The process takes between
8 to 12weeks. Back to Top