Clients are often misguided as to their rights and obligations in a divorce and, because of this, their expectations are often unrealistic. Frequently clients will tell me what they believe the law to be, only for me to have to educate them otherwise. Some of the most common misperceptions I hear are the following:
MYTH: My spouse left me and I need to file immediately for a legal separation.
TRUTH: In New Jersey, there is no such thing. We do have a cause of action (grounds for divorce) based on 18 consecutive months of separation. This is a basis for a divorce – not a basis for a legal separation. While some parties may have the financial means to live separate and apart during their divorce process, the marriage remains intact as do the obligations of the parties as a married couple. Further, since we have irreconcilable differences as grounds for divorce, nearly 99.9% of the divorces I handle are put through on the grounds of irreconcilable differences, and the 18 month separation cause of action is not so often used.
MYTH: My spouse abandoned me. I want consequences for this abandonment.
TRUTH: There are really no legal consequences for such “abandonment.” Where this does become important is if custody and parenting time are at issue. If a parent abandoned his/her spouse and child(ren), this will have implications in a custody and parenting time determination. I often counsel my clients that they are not to leave the marital residence unless and until custody and parenting time issues are resolved.
MYTH: It does not matter who my spouse hires as an attorney; we want an amicable divorce.
TRUTH: Unfortunately, it does matter. Some attorneys are resolution-oriented; some are not. If you and your spouse seek resolution, you need a resolution-oriented attorney. Now, this does not mean one who cannot protect you and advocate for you. It means one who respects your desire for an amicable resolution while advising you of your rights.
The fact is that clients can get divorced as soon as an agreement has been reached between them. They are in sole control of their fate and hold the time of the resolution of all of their issues in their own hands.
MYTH: My spouse is at fault and, therefore, must pay extra.
TRUTH: Unfortunately, for the most part, fault does not matter. In some extremely egregious situations, it may, but these situations are certainly a rare, if ever, exception to the rule.
MYTH: My child has turned 18 years old, so now I do not have to pay child support anymore.
TRUTH: Emancipation does not automatically occur at 18 years of age. It may or it may not. The analysis in deciding if a child is emancipated is whether or not the child is outside the “sphere of influence” of their parents, or if they are self-sufficient. For example, children attending college full-time are not emancipated. Special needs children may never become emancipated. When a child becomes emancipated is a fact-sensitive analysis.
MYTH: Common law marriages exist in New Jersey.
TRUTH: They do not. Clients often think that if they are living together for an extended period of time, they become common law husband and wife. They do not. There may be a palimony issue arising out of contractual obligations and promises, but there is no marriage.
I hope the above is helpful in dispelling and correcting some common misperceptions of divorce law.