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Barrister
Barrister, Lawyer
Category: Family Law
Satisfied Customers: 33802
Experience:  Attorney with 15 years experience
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My husband of over 6 years had left me and my 3 year old son

Customer Question

My husband of over 6 years had left me and my 3 year old son in June 2014. My son and I were visiting family overseas and my husband had e-mailed me saying he is leaving us and going to live with his parents. From then until now, he had wanted to reconcile,
then not. Most recently, he left to go work in another state and is now demanding a divorce again and told me that he will be serving me divorce papers. I do not want the divorce as I want to continue standing for our marriage and family, but I am not sure
as to the options I have if he does file the papers. I live in NJ with my son. Would this be considered a no-fault divorce? He is not having an affair as far as I can tell. He currently continues covers our health insurance and sends money monthly for our
son. How is child typically handled in these situations if done legally? Thank you in advance for your help.
Submitted: 1 year ago.
Category: Family Law
Expert:  Barrister replied 1 year ago.

Hello and welcome! My name is ***** ***** I will try my level best to help with your situation or get you to someone who can.

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I am sorry to hear that you are having to go through this back and forth with your husband..

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Would this be considered a no-fault divorce?

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NJ doesn't really have "fault" and "no fault" divorces. The petitioner just has to allege and prove one ground for being able to maintain the divorce action. The divorce grounds are as follows:

Divorce from the bond of matrimony may be adjudged for the following causes heretofore or hereafter arising:

a. Adultery;

b. Willful and continued desertion for the term of 12 or more months, which may be established by satisfactory proof that the parties have ceased to cohabit as man and wife;

c. Extreme cruelty, which is defined as including any physical or mental cruelty which endangers the safety or health of the plaintiff or makes it improper or unreasonable to expect the plaintiff to continue to cohabit with the defendant; provided that no complaint for divorce shall be filed until after 3 months from the date of the last act of cruelty complained of in the complaint, but this provision shall not be held to apply to any counterclaim;

d. Separation, provided that the husband and wife have lived separate and apart in different habitations for a period of at least 18 or more consecutive months and there is no reasonable prospect of reconciliation; provided, further that after the 18-month period there shall be a presumption that there is no reasonable prospect of reconciliation;

e. Voluntarily induced addiction or habituation to any narcotic drug as defined in the New Jersey Controlled Dangerous Substances Act, P.L.1970, c. 226 or habitual drunkenness for a period of 12 or more consecutive months subsequent to marriage and next preceding the filing of the complaint;

f. Institutionalization for mental illness for a period of 24 or more consecutive months subsequent to marriage and next preceding the filing of the complaint;

g. Imprisonment of the defendant for 18 or more consecutive months after marriage, provided that where the action is not commenced until after the defendant's release, the parties have not resumed cohabitation following such imprisonment;

h. Deviant sexual conduct voluntarily performed by the defendant without the consent of the plaintiff. (New Jersey Statutes - Title 2 A - Chapters: 34-2

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How is child typically handled in these situations if done legally?

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If you are the parent the child lives with, then unless he objects and tries to get custody, then this normally remains the same and he would be obligated to pay child support to you for the child and the judge would award him some type of visitation or joint custody rights with you being the primary custodial parent.

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As for any spousal support, that is determined on a case by case basis and is dependent on a host of factors below. In so doing the court shall consider, but not be limited to, the following factors:

(1) The actual need and ability of the parties to pay;

(2) The duration of the marriage;

(3) The age, physical and emotional health of the parties;

(4) The standard of living established in the marriage and the likelihood that each party can maintain a reasonably comparable standard of living;

(5) The earning capacities, educational levels, vocational skills, and employability of the parties;

(6) The length of absence from the job market of the party seeking maintenance;

(7) The parental responsibilities for the children;

(8) The time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, the availability of the training and employment, and the opportunity for future acquisitions of capital assets and income;

(9) The history of the financial or non-financial contributions to the marriage by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities;

(10) The equitable distribution of property ordered and any payouts on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair;

(11) The income available to either party through investment of any assets held by that party;

(12) The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a non-taxable payment; and

(13) Any other factors which the court may deem relevant.

When a share of a retirement benefit is treated as an asset for purposes of equitable distribution, the court shall not consider income generated thereafter by that share for purposes of determining alimony. (New Jersey Statutes - Title 2 A - Chapters: 34-23)

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thanks

Barrister

Customer: replied 1 year ago.
Thank you for your prompt reply. So, in other words, in NJ, I cannot stop the divorce from happening if my husband decides to file? I am not as interested in alimony as I am about child support. My husband is not asking for custody of our son, but if this divorce is going to happen despite my will, I would like to make sure my son is at least financially supported fairly by his father in the years to come. How is the amount of child support calculated? I read something about weekly combined net income. Is it solely based on this?
Expert:  Barrister replied 1 year ago.

Basically yes, if one person is determined to divorce, the other person can't prevent that from happening.

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Any child support award is based on a calculator that the judge uses that factors in the parent's respective incomes, number of children, and custodial time. IF you visit this link and plug in your respective numbers, it will give you a very close approximation of what a judge would award as support:

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http://www.alllaw.com/calculators/childsupport/new_jersey

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thanks

Barrister

Customer: replied 1 year ago.
Thank you for that calculator tool. Would our case be considered "desertion" and if so, does it change the amount of child support we could receive? Also, do you recommend that I get a local lawyer to represent my case given our situation or should we be able to settle on our own terms? If the child support calculator is pretty accurate, it doesn't seem we really need a local attorney to figure things out...
Expert:  Barrister replied 1 year ago.

It would likely be desertion if you were to file as it is you who would have to claim that. And no, that is just a ground that a divorce can be filed under. The underlying calculations don't change.

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As for whether you need an attorney, if you agree to divorce and can agree privately on a settlement for everything, including any spousal support and property division, then you may not need one. But the spousal support can be an area of contention as there is not a set calculator for that and it depends on those factors I mentioned.

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thanks

Barrister

Customer: replied 1 year ago.
Thank you for your answers and apologies for the delay in my response. What happens legally if I move overseas with my son? Does the original court ruling hold wherever we live? And how long would my son be able to receive child support?
Expert:  Barrister replied 1 year ago.

No worries. Honestly, it would depend on where you moved and whether they had a reciprocity agreement with the US to enforce their judgments and orders. But if the other parent stopped paying, then you would have to come back to the US to pursue a contempt of court motion as you can't do so remotely.

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But the age of termination in NJ for child support is 18 years of age.

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thanks

Barrister

Customer: replied 1 year ago.
I see. How can I find out which countries have a reciprocity agreement with the US?
Expert:  Barrister replied 1 year ago.

You would have to actually contact that country's embassy or the US embassy to see if they had such reciprocity agreements.

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But to be honest, I kind of doubt other countries would be very aggressive in pursuing a child support case from another country even if they had reciprocity agreements in place to recognize US judgments and orders.

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thanks

Barrister