Decoding Divorce Legalese: What is My Lawyer Actually Saying?
By Snyder Sarno D'Aniello Maceri da Costa LLC on August 29, 2023
Divorce is daunting enough without having to learn the legal terms associated with it. Each case has its own specific set of facts and thus will have its own set of issues to be argued. As important as it is to have an attorney who can argue your case, it is just as important to have an attorney who can communicate effectively with you. Below are some of the common issues involved in divorce proceedings with a basic explanation of what each means and how the court may view them.
Custody is a court determination of which parent will physically and legally be responsible for a couple’s minor child(ren). It is not required that one parent be designated as the sole physical or legal custodian of a child, and the best interests of the child(ren) is the main consideration of the courts in making these determinations. (See, Terry v. Terry, 270 N.J. Super. 105, 119 (App. Div. 1994)). Legal custody and physical custody are two different terms. The first refers to the major decisions made regarding the child such as what school they will attend. The second refers to whom the child spends the majority of their time with.
Physical custody is broken down into:
Custodial Parent – the parent with whom a child spends the majority (over 50%) of their time.
When a parent is designated the custodial parent, authority over day-to-day decisions is typically given to that parent. (See, Brzozwski v. Brzozwki, 265 N.J. Super. 141, 147 (Ch. Div. 1993)). However, this does not mean that if you are designated the noncustodial parent, you will have no say in decisions regarding your child(ren).
Noncustodial Parent – a parent who does not have physical custody of his/her minor child the majority of their time.
If the court determines you are the noncustodial parent, this does not mean you will have no say in decisions regarding your child(ren). When major decisions regarding a child’s welfare are at issue, the court typically, absent a sole legal custody agreement, seeks the input from both parents. (See, Beck v. Beck, 86 N.J. 480, 487 (1981)).
Primary Residential Custody – when a parent is granted physical custody of the minor child(ren) for at least 51% of the time. If granted this type of custody, often the parent will be referred to as “the parent of primary residence” or “custodial parent”, and the other parent will be referred to as “the parent of alternate residence”.
Shared Residential Custody – when a child resides with each parent equally.
Additionally, legal custody is broken down into:
Joint Legal Custody – a custody arrangement where the “authority and responsibility for making ‘major’ decisions regarding the child’s welfare” is shared by both parents. (See Beck v. Beck, 86 N.J. 480, 487 (1981)).
The court has stated that joint legal custody is the “preferred arrangement”. (See Nufrio v. Nufrio, 341 N.J. Super. 548, 555 (App. Div. 2001)).
Sole Legal Custody – a custody arrangement where all major decisions in the child(ren)’s lives are made by one parent .
As mentioned above, joint legal custody is the New Jersey court’s preferred legal custody arrangement. This is because it is believed that a relationship with both parents is in the child(ren)’s best interests. (See, Nufrio v. Nufrio, 341 N.J. Super. 548, 555 (App. Div. 2001)). However, the preference does not guarantee a finding of joint legal custody.
Parenting time is the time a non-custodial parent spends with their child(ren) when the other parent has sole legal custody.
Child support is financial support ordered by a court to be paid by one spouse to the other during separation or following a divorce for the support of one’s minor child or children.
When determining child support obligations, how the ultimate obligation is decided is dependent upon the incomes of the parents. Caplan v. Caplan, 364 N.J. Super. 68 (App. Div. 2003). When incomes are below the threshold established by the child support guidelines, the child support guidelines are used to determine the obligation. Id. However, when the incomes are above the threshold, the factors listed in N.J.S.A. 2A:34-23(a) are used to determine the ultimate obligation.
Alimony is financial support ordered by a court to be paid by one spouse to the other during separation or following a divorce.
The goal of alimony is to assist the supported spouse in maintaining a lifestyle comparable to the one enjoyed during the marriage. (See, Lepis v. Lepis, 83 N.J. 139 (1980)). This does not mean that the supported spouse will be guaranteed a lifestyle identical to the one enjoyed during the marriage. The court considers 14 factors when determining whether alimony is appropriate and the alimony obligation amount. (See, N.J.S.A. 2A:34-23(b)).
Palimony is financial support ordered by a court paid by one partner to the other after separation based upon a promise or contract.
Palimony, while sounding similar to alimony, is not alimony. Palimony payments are one time instead of monthly/annually. (See, In re Roccamonte, 174 N.J. 381 (2002)). Additionally, palimony claims are based on promises of support made, instead of the financial promise inherent in marriage. After the 2010 amendment to the Statute of Frauds these types of promises typically need to be in writing to be enforceable.
Equitable distribution is the principle governing the allocation of marital property between spouses during divorce.
In the United States, courts typically utilize an equitable distribution or equal distribution model for the allocation of marital property during divorce. In New Jersey, the court uses equitable distribution. This means the court will attempt to find a fair allocation of property, not necessarily an equal allocation. Because of this, it is important to have someone who understands the considerations utilized by the court to create the strongest case for you.
Pendente lite is a Latin term meaning pending the litigation. Divorce proceedings can take anywhere from a few months to years. As alimony and child support are typically determined as part of the final judgment of divorce, this may leave one spouse with little to no means to take care of themselves during the litigation process. To help prevent this, the court may order an alimony or child support obligation to take effect pendente lite, meaning the spouse who is obligated to pay will begin making these payments while the remainder of the divorce case proceeds.
There are a multitude of issues which may arise during your divorce case. It is important to have someone who is both well informed and experienced in handling these issues. Allow our attorneys at Snyder Sarno D’Aniello Maceri & da Costa LLC to help you in creating your case.
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