Divorce or Stay Together?
What steps can I take to save my troubled marriage?
We are constantly arguing. It there anything we can do to stay out of divorce court?
If we can't work things out, should we stay together for the sake of our children?
If we do decide to stay together until the children are older - for their sake - when would be the least damaging time to go ahead with our divorce?
Does gender play a role in how children react to divorce?

Domestic Violence & Spousal Abuse
I have an abusive spouse - or at least I feel abused - is there anything I should do, or is what I'm going through just to be expected?
How do I go about reporting an act of domestic violence?
Am I likely to have any difficulties reporting the domestic violence to the police?
What if a Temporary Restraining Order is issued; what then?
Is there anything else I can do about domestic abuse, short of making a complaint under the Domestic Violence Act?
Are there ever any false complaints made under the Domestic Violence Act?

Preliminary Concerns
Is there "Legal Separation" in New Jersey?
Can I leave the marital home?
Can I make my spouse leave the marital home?
What are the grounds for divorce and does fault make a difference in determining the outcome?
The phrase "Extreme Cruelty" sounds quite harsh. What does it really mean?
What if my spouse won't agree to the divorce?
Can I apply for an Annulment instead of a divorce?

Child Custody
How is child custody determined?
Are the courts still reluctant to grant sole custody to fathers?
Does a spouse's infidelity have any bearing upon custody determinations?

Support - Generally
What are the different types of support that can be obtained in a divorce proceeding?

Child Support
How is Child Support calculated?
What are the Child Support Guidelines?
What if the Guidelines are Inappropriate for My Case?
Are payments for child care, medical care and other similar costs included as part of child support?
How long must I pay or can I receive child support?

Alimony - Spousal Support
How is alimony calculated?
Are alimony and child support taxable?
Is there any way of structuring support payments to optimize tax consequences?
Can I receive child support or alimony before I am divorced?

Division of Property - Equitable Distribution
How will the marital property be distributed?
How will the Court what an equitable distribution of property would entail?
What property is not subject to equitable distribution?
What if certain assets are titled in my name alone... does this insulate me from an equitable distribution claim by my spouse?
What if I purchased a house prior to marriage and used nothing but my own pre-marital funds in its purchase. The property was titled in my name alone.
After we married, I agreed to re-deed the home over to the both of us as tenants by the entireties. What then?
Would I be entitled to Social Security benefits via my soon-to-be-ex-spouse’s employment record?

A. Many have found marital counseling, with either clerical or lay therapists, quite beneficial. While no therapist can solve every marital problem, many have succeeded in changing the course of their rocky relationships through counseling. On the other hand, there are the unfortunate many who fail to save their marriages through conventional marriage counselling.

One of the necessary elements for most forms of marriage counseling to work is that both parties earnestly want the marriage to succeed. Often, one party wants the marriage to succeed, while the other wants out. Another ill-fated approach to training to save a marriage through counseling happens when one or both of the parties attend the sessions because they feel that it is expected of them.

When a divorcing person announces his or her plans for ending a marriage to friends or family members, the classical response is the question: "Have you tried marriage counseling?" Many people, in anticipation of this question, see to it that they can respond: "Yes, we've tried marriage counseling, and it didn't work."

Some couples are turned off by the idea of marriage counseling, and so never attend. Others get turned off once the process is initiated. An unskilled or clumsy counselor can actually contribute to the problems dividing the couple.

Our approach to helping couples reconcile their issues is discussed on our "Reconciliation" page. The approach does not rely on psychology, but on understanding the realities of divorce, the needs and issues of the parties, and the best approach for communicating, arguing and solving problems.

A. As a matter of fact, some conflict and disagreements are important for long-term success in marriage. The key is really how argument is conducted. In other words, does argument usually escalate tension, or does it typically lead to a feeling of resolution. Sometimes, the problem is basically a lack of some interpersonal skills or understanding of the other's point of view, values, personality or temperament. Sometimes, the problem is not lack of skill or understanding, but rather the noxious byproduct of the negativity that has dominated the marriage.

Couples in this toxic environment can benefit greatly by learning how to break the cycle of negativity and pattern arguments, in order to give certain repair mechanisms a chance to work.

Before and during potentially touchy discussions, troubled couples should make an agreement to limit discussions of contentious issues to 15 or 20 minutes (tops) at a single sitting. Learning to calm down after arguments is the first step to a constructive resolution. Arguing spouses need to recognize when they are feeling overwhelmed and at the point of saying things they would soon live to regret. Once accustomed to recognizing these threshold points, individuals can begin deliberate efforts to calm down. If you must call for a time-out to cool off, then do it.

A very important skill or discipline that can benefit everyone is the ability to listen or speak without becoming defensive or promoting defensiveness. Non-defensive listening helps ease the couple's defensive style of speaking to one another. Defensiveness is very dangerous and encourages the cycle of negativity. By finding the courage not to be defensive, or by minimizing it as much as possible, many troubled marriages can begin to improve.

Another key to living well together is validation; letting the other know with little clues that his or her point of view is understood. This can be one of the most powerful tools for healing in a relationship, marital or otherwise. Instead of attacking or ignoring each other's views, the partners try to see the problem from each other's perspective. Validation is simply putting oneself in the other's shoes and vividly imagining how they must feel and believe. This very effective technique is also known as the "first position perceptual shift." To reinforce this learning, it is important - once some success has been experienced - continue to practice these lessons until they become automatic.

A. Divorces occur for different reasons. Some people have just grown apart. Others can't argue or make important joint decisions constructively. Many people who are unhappy or unfulfilled in their marriages do stay together until the their children are a certain age, or until they have all left the nest. There is a lot of controversy in the research about whether the decision to divorce or to stay married in a loveless marriage effects the children one way or the other. Writers in this area have even contradicted themselves over time. Many people become better parents and better friends with each other following a divorce.

One thing is for certain, however. If the divorce is being contemplated because of Domestic Violence, things only get worse for all involved if the abuse is permitted to continue. While offenders can be rehabilitated, it is not in the children's best interests for cohabitation to continue in the presence of continuing violence. Please visit our "Domestic Violence" page for more information on this subject.

Staying together or divorcing for the sake of the children depends upon the nature and extent of the marital discord. The key question to ask is whether the unhappy couple could cooperate on parenting issues when staying together. In other words, if the decision to stay is premised upon what's best for the children, there has to be a conscious decision by both parents to the effect that their needs to be happy in a marital relationship are being subordinated by the needs of the children to have their parents stay together. That being the case, if the couple cannot realistically expect to function as a unit in parenting their children, the decision to stay together for the sake of the children should be rejected as a "lose-lose" proposition.

A. All children, regardless of age and gender, feel a short term impact resulting from their parents' divorce. Please consider the following general observations (they are ONLY general observations), often reported as descriptive behaviors or symptoms, by age:

Preschoolers: These children sometimes suffer sleep disturbances. They may have problems with toilet training and eating with utensils, and may forget skills they had earlier mastered.

5-6 years old: These children may throw temper tantrums and show other signs of increased aggression. They sometimes harbor feelings of self-blame and intense sadness.

6-8 years old: These children long for their parents' reconciliation. Like the preschoolers, they sometimes experience sleep disturbances. They also want to appear and be loyal to both parents.

9-12 years old: Conversely, these children feel and direct anger at both parents, but often side with one. They experience extreme feelings of embarrassment and mortification.

13-18 years old: These children experience more extremes than the 9-12 years old group, including extremely angry and blameful reactions. Interestingly, many of them worry about their personal finances and assets, and whether they would have to directly suffer the economic effects of the divorce. Loyalty conflicts are also observed to exist. Some of these youngsters are engaged in increasing sexual exploration. Others go into social withdrawal and may experience anxiety about their relationships.

The bottom line is that children experience short-term adjustments to separation and divorce at every age. There is no "right age," as far as the children are concerned, to divorce. One phenomenon I have observed rather often is the brooding contempt that many adult children have expressed "and I'm talking people in their thirties and forties" toward their elder parents, who waited until all the children were all married-off to announce their plans for not going into retirement together. Many of them believe that they were made to live a lie, and that their positive recollections of childhood were, in large part, orchestrated illusions.

A. Gender comes into play as well. Males usually react differently from the way females do. Males often become aggressive, with females frequently becoming withdrawn. For most children "as long as the battling stops between the parents" life becomes more stable after the first year of divorce. This is particularly true where they are transferred from a hostile home to a calm one. But whether their parents stay married or divorce, if there is constant conflict, children will suffer long-term consequences either way.

I believe that children can and do survive divorce, as long as their parents declare a truce with each and go on to provide a relatively predictable lifestyle for their children to feel secure about sharing.

A. Some people believe that abusive conduct is limited to physical violence. However, this is not the case. Emotional abuse, imprisonment, physical intimidation, threats, financial blackmail, and sexual cruelty are all forms of abuse that you should respond to in order to protect yourself and your children. These types of behavior can escalate to physical violence, and witnessing abusive behavior between parents in any of its various forms can have a long-term detrimental effect upon children. Blackened eyes, bruises and fractures should not be a prerequisite for seeking help. Emotional scars are sometimes equally damaging and difficult to heal.

Physical abuse must be viewed in the broadest possible sense. Any angry touching, shoving or bumping is physically abusive.
Emotional abuse can take many forms. A distinction must be made between mere insensitivity and deliberate mental or emotional cruelty.

Abuse should not be tolerated in an effort to preserve the marriage "for the sake of the children." Long-term harm to children who have witnessed to a parent's fear, shame and humiliation outweigh any benefit derived from preserving an abusive relationship.
Spouses who prevent their mates from seeking help, or simply from temporarily getting out of harm's way are abusers. Barring the door, confiscating car keys, or hiding wallets, pocket-books or clothing are all acts that prevent a victim from escaping potential domestic abuse or violence. This is "imprisonment." While imprisoning itself is an act of terror, imprisoning one's spouse or "lover" can lead to physical assaults or even torture.

Physical intimidation often precedes other acts of violence. While verbal terroristic threats may never be spoken, the person engaging in the intimidation may communicate the threat of immediate harm to the victim " quite convincingly " yet non-verbally. There is no question left in the victim's mind that the slightest hesitation in yielding to the abuser's demands will trigger an escalation of violence.

Domestic Violence can take many forms. Please carefully review our "Domestic Violence" page for a comprehensive listing of types of abusive conduct New Jersey recognizes as actionable under its Domestic Violence Act.

A. Physical violence should be immediately reported to the police, or to a Superior Court Judge or Hearing Officer and a restraining order applied for to prohibit the abuser from returning to your residence and from committing any further acts of Domestic Violence. Initially, a Temporary Restraining Order ( TRO ) will be issued, on the condition that the Judge, Magistrate or Hearing Officer believes one is necessary to deter further acts of Domestic Violence

If you report the violence to the police during the hours of about 6:00AM to about 3:30PM, the officer taking the report will, in all likelihood, direct you to your County's Superior Family Court, where you will given the opportunity to tell your story to a Hearing Officer or Judge, who will decide whether a TRO should issue.

If you report the violence to the police after about 3:30PM on a week day (Court closes at 4:40PM), or on the weekend, the officer taking your report is supposed to convey your complaint of Domestic Violence to a Municipal Court Judge, who is supposed to be on-call for the purpose of reviewing such complaints. Sometimes, this does not happen the way it should in practice.

A. It has been observed on more than just a few occasions that "absent signs of a physical assault" some police departments do not contact their Municipal Court Judge for review and decision but, instead, send the complaining victim away with the advice that they should make their complaint in Family Court during the week, between 8:30AM and 4:30PM.

This is an abusive practice, entirely inconsistent with the letter and spirit of the Domestic Violence Act. The Act is designed to curtail violence before it becomes physical violence. It is for this reason that complaining victims "whenever possible" go to the police department with another adult companion.

Be prepared to vigorously protest any decision against issuing a TRO that was not made by the on-call Judge. The following is excerpted from New Jersey's Domestic Violence Procedures Manual, and should be quoted to the reporting officer if there are any problems related to a refusal to present your case to a Judge:

Guidelines on Police Response Procedures in Domestic Violence Cases
VI. Emergent Temporary Restraining Orders.
A. Where... the victim requests an immediate court order, the officer shall contact the designated Judge by telephone, radio, or other means of electronic communication. The officer should:
1. Assist the victim in preparing a statement to be made to the Judge.
2. Explain that the Judge will place the person under oath and ask questions about the incident.
3. If the Judge issues a temporary restraining order, the police officer will be instructed to enter the Judge's authorization on a prescribed form.

Demand your right to be heard! It is yours to exercise.

A. If a TRO is entered, the Defendant will be served with the Order and a copy of your complaint, and a Hearing date set on the issue of whether a Final Restraining Order ( FRO ) will be granted or not.

Never set aside a restraining order once obtained. Always have a copy of it in your possession.

A. Yes. The police or the courts may not be the first line of assistance, depending on the nature of the abusive conduct. Options for help include consulting a lawyer, seeing a mental-health professional for both abused spouse and the children, as well as seeking out support groups and community services for abused spouses and their families.

It should be noted that there are many abusive behaviors that do not arise to the level of domestic violence as defined by the Act. It should likewise be acknowledged that many people who otherwise qualify for protection under the Act, will not opt to seek the court's involvement in that regard. Instead, they may decide to divorce or separate from their abusive partners without filing a domestic violence complaint. Some may try to save and heal their abusive relationship through counseling. Others might just decide to stick it out.

A. On a rather disturbing note, it is true that groundless domestic violence complaints are filed every year. There appears to be three leading motivations for abusing the system in this fashion.

1. The "victim" wants to exclude the estranged spouse or lover from the home.

2. The "victim" wants to achieve a perceived advantage in the context of a contested child custody action.

3. The "victim" wants to punish the alleged aggressor for things having nothing whatsoever to do with domestic violence.

If an innocent party has been unjustly accused of an act or acts of domestic violence, it is strongly recommended that competent legal counsel be immediately sought. Pro se representation should be avoided if at all possible. In choosing an attorney to defend against a false domestic violence claim, great care must be taken to ensure that the attorney is well-versed and experienced in this area of the law. It is extremely difficult to get rid of a Final Restraining Order "once one has been entered" without the purported victim's consent. Experienced New Jersey Family Lawyers with special knowledge of our domestic violence laws should be contacted the moment it is suspected that a false accusation may emerge.

A. No. If a marriage is irretrievably broken, a separation only succeeds in postponing the inevitable. In New Jersey, a separation cannot compel an unwilling spouse to provide financial information, divide assets, allocate debts or pay support.

A. Either party can choose to leave the marital residence. However, an attorney should be consulted before making this or any other major change in circumstances. In some situations, physical separation is advisable. However, in many cases, leaving the home may have serious negative consequences to the person doing the leaving. This is particularly true if the person leaving is seeking custody of the children, but chooses to allow the children to remain in the residence with the other parent. Departure from the home may also create an otherwise avoidable financial burden for both parties.

A. The court will rarely compel either party to leave the marital home until the divorce is final, except in the event of domestic violence. Only in unique circumstances would a party be compelled to leave the home in the absence of domestic violence. Victims of physical abuse or verbal harassment should consider call the police or applying directly to the Courts for protection. An emergent order may be entered by either a Municipal or Family Court judge to immediately exclude the allegedly abusive spouse from the marital home. A hearing is supposed to be held within ten days to determine whether there is enough evidence to keep the allegedly violent spouse from returning to the home on a permanent basis. If such an order is granted, the violent spouse will not be permitted to return to the home, except to retrieve personal belongings, and then, only with a police escort.

If unsupervised parenting time with the other spouse is ordered, transfers are often accomplished "curb-side."

A. In New Jersey, there are several "fault-based" grounds and one "no fault" cause of action for divorce. In most cases, fault has no bearing on how marital assets will be divided or on how support and alimony issues will be decided. Many lawyers and judges consider the concept of marital fault to be dead in New Jersey C absent truly bizarre circumstances. In rare cases, the Court may consider the grounds for divorce as a factor in determining alimony. Again, this is the exception as opposed to the rule. Without digressing from the realities, the provable claim would have to be something along the lines of the spouse at fault visiting the other, sickly spouse "while in the hospital and in guarded condition" to share the existence of a continuing affair with a dear friend of the ailing spouse, with the friend having already moved into the marital home, wearing the hospitalized spouse's pajamas to bed. Fault is an emotional factor in a divorce, but it typically has little or no influence on the terms of a final settlement.

A. Extreme Cruelty is the most commonly used ground for divorce. More than one-half of the divorces in New Jersey are based on extreme cruelty. Common factors can include allegations that the other spouse: is too tight or too loose with money; denies necessities; uses too much or not enough credit; neglects monthly payments; spends unreasonably; is overly controlling; has an erratic employment history; causes embarrassment or humiliating experiences; abuses alcohol or drugs; gambles compulsively or unacceptably; is sexually inconsideration; refuses to have sexual intercourse; is sexually excessive; makes unreasonable sexual demands; engages in perversions; is impotent; is homosexual or bi-sexual; plays mind games; dates other people, short of adultery or deviant sexual conduct; refuses to do chores; doesn't fulfill the role as parent, spouse or supporter; lies; commits fraudulent acts; conceals information; insists upon not enough or too many social activities out of the home; uses offensive language; perpetrates acts of domestic violence; lacks personal hygiene; lacks initiative; exhibits noxious or distancing interpersonal behaviors; uses the cold shoulder treatment; employs domineering behaviors; engages in non-productive or aggravating arguments; launches threats; displays unwarranted jealousy; has a rotten temper; is mentally ill; acts neurotic; is emotionally unstable; commits crimes; has conflicting religious beliefs or practices; drives badly or dangerously; harbors unreasonable obsessions; incites provocation; engages in inappropriate acts of retaliation; displays indifference (the true opposite of love); lacks affection; nags incessantly; refuses to have children.

Many have accurately observed that allegations sufficient to sustain a divorce on the grounds of extreme cruelty involve shortcomings, problems or disappointments common to even healthy, thriving marriages. The unspoken policy of the State of New Jersey is not to force anyone to stay married who does not wish to continue in that relationship. The allegations can be rather light and there is no necessity to recite every repugnant act ever committed by the other party in a Complaint for Divorce. In fact, in the event a Trial is ever actually convened, most Judges are not interested in hearing any testimony or reviewing any evidence that is not relevant to economic, parenting, credibility or safety issues, or to proving the existence of acts amounting to domestic torts or civil offenses occurring within the relationship.

A. This question, which has to be asked of divorce lawyers thousands of times in any given year, is quite possibly the result of watching too many old movies on TV. There were times, dating back to before the American Revolution, when couples who mutually wanted to end their marriages would actually hire actors to stage adulterous liaisons with one or the other of them, as well as private detectives to document and testify to the performance they observed.

Much more recently, but still a good many years ago, boudoir photos were often part of the divorce trial.

Practically speaking, if one of a married pair wants out of the marriage, the marriage will end, with or without the others' consent or objection.

A. In a divorce, the court declares the marriage contract broken; in an annulment, the court says that there never was a marriage. Annulment is more difficult to prove - and much rarer - than divorce. To go this route, it is strongly advised that an attorney be consulted. Out of the great many people who have consulted with our offices on the possibility of obtaining an annulment over the years, only three had sustainable grounds. If an annulment is sought for religious reasons, consult with a priest, minister, or rabbi as well.

Just because a New Jersey Court grants your Compliant for Annulment ( Nullity ), does not mean your religious faith will recognize the Annulment.

A. A. Unless the parties can agree, custody is determined by the "best interests of the children" standard. Both parents begin the process with an equal entitlement to parenting rights. There are statutory and other criteria, which Judges are to apply in making custody and parenting determinations. Please visit our "Child Custody" page to view a listing of these criteria.

The Supreme Court in Beck v. Beck, 86 N.J. 480, 485 (1981) stated that the "pertinent statute [N.J.S.A. 2A:34-23] provides courts with broad authorization for custody determinations in divorce proceedings ...." See also Terry v. Terry, 270 N.J. Super 105 (App.Div.1994).

Generally, in New Jersey, there are two overall concepts of child custody.

The first is "Legal Custody." This refers to the authority vested in the parents to make decisions of a non-routine nature, which affect the child's health education or welfare. For example:

While what to serve a child for dinner on any given day is a routine decision, the decision that a child will be raised in a religion where certain dietary laws and restrictions must be observed is non-routine.

While determining to take a child to be entertained at the movies may be a routine decision, deciding what maturity level the child should be exposed to may be non-routine.

Deciding to bring a child for a haircut is arguably routine, while allowing a child to color, tint or radically cut his or her hair might be more non-routine.

Allowing a child to wear a press-on "tattoo," providing it is suitable to the child's circumstances, is rather routine, permitting a child to have a piercing done is not routine.

Deciding to drop a child off at school is routine, while determining that a child will attend a particular school or course of study is not.

We mention these examples, because there are two types of Legal Custody; Sole Legal Custody and Joint Legal Custody. Both have to do with parental authority to make important non-routine affecting the child.

In a Joint Legal Custody arrangement, there is the underlying presupposition that parents will eventually develop the ability to come to joint decisions of a non-routine nature. There must always be consultation between the parents on such issues before a decision of this variety is made and acted upon.

If one parent makes such a decision without consulting the other, the non-included parent can make a motion for appropriate relief before the Court. For instance, one parent signs a child up for summer football camp, without telling the other parent " who may be opposed to the physical risks involved. The other parent can file a motion with the Court to prevent the child from attending the camp, and to caution the other parent about making any further one-sided decisions of a non-routine nature. The Judge may or may not grant the motion.

In a Sole Legal Custody situation, one parent is the Legal Custodian and does not have to consult with the other in making important non-routine decisions. The other parent, conversely, has a duty to request the custodial parent's permission or consent to every non-routine parenting decision. If the non-custodial parent, for example, decides to pull a child out of school for a week to go for a surprise trip to Disney World without the express permission of the custodial parent, the objecting parent can file a motion to prevent the unplanned vacation from happening. Once again, a Judge is left to decide the motion on a case-by-case basis.

The Sole Legal Custodial Parent, however, must act responsibly in making decisions that are in the child's best interests. If the other parent is concerned that the custodial parent is about to make or has made a decision inimical to the child's best interests, that parent can make an appropriate motion to the Judge, who will decide the case either way.

The second general child custody concept in New Jersey is the concept of physical or residential custody. Residential custody is likewise broken down into subcategories.

Sole Residential Custody. In this custodial arrangement, the sole custodial parent has the child living with them for greater than five days out of the average week, which does not include vacation arrangements. The other parent has parenting time with the child, but less than two overnight equivalents in the average week.

Shared Residential Custody. Here, neither parent has the children more than five days a week, or less than two days a week, on the average In the context of this arrangement, the nomenclature is different. The parent who has the children for the majority of the average week is known as the "parent of primary residence" (PPR), while the parent having the children for less than half of the time is called the "parent of alternate residence" (PAR). This distinction is made, even if the PPR has the children 183 nights out of the year and the PAR has the kids to remaining 182.

Split Residential Custody. In this somewhat unusual scenario, one or some of the children would live primarily with one parent, while the remaining child or children would live primarily with the other. Cases do come up from time to time where certain children would benefit from living primarily with one parent over the other, and vice versa, with the benefit of doing so outweighing the children's interests in living with their siblings. One example would involve children in two entirely different age groups, with entirely different needs, better met by one parent than the other. Perhaps the couple's 16 years old figure skating daughter is an Olympics hopeful. Dad's business has taken him to a locale where the daughter can train with the best of the best. Mom, on the other hand, is a physician with a New Jersey practice and a son who is in kindergarten with some health care issues. Once again, while these arrangements are uncommon, they do occur.

However, this change in nomenclature does not change the fact that one party or the other will usually have the children in their home more than the other. When this is an issue, and the parties cannot agree, there is a process established by the Rules of Court to deal with unresolved parenting issues. Please consider the following guidelines:

5:8-1. Investigation Before Award

In family actions in which the court finds that the custody of children is a genuine and substantial issue the court shall refer the case to mediation in accordance with the provisions of R. 1:40-5.

Included below is the content of R. 1:40-5 for ready reference:

1:40-5. Mediation of Custody and Parenting Time Actions

(a) Screening and Referral. All complaints or motions involving a custody or parenting time issue shall be screened to determine whether the issue is genuine and substantial, and if such a determination is made, the matter shall be referred to mediation for resolution in the child's best interests.

However, no matter shall be referred to mediation if there is in effect a preliminary or final order of domestic violence entered pursuant to the Prevention of Domestic Violence Act (N.J.S.A. 2C:25-17 et seq.).

In matters involving domestic violence in which no order has been entered or in cases involving child abuse or sexual abuse, the custody or parenting time issues shall be referred to mediation provided that the issues of domestic violence, child abuse or sexual abuse shall not be mediated in the custody mediation process. The mediator or either party may petition the court for removal of the case from mediation based upon a determination of good cause.

(b) Conduct of Mediation. In addition to the general requirements of Rule 1:40-4, the parties shall be required to attend a mediation orientation program and may be required to attend an initial mediation session.

Mediation sessions shall be closed to the public. The mediator and the parties should consider whether it is appropriate to involve the child in the mediation process. The mediator or either party may terminate a mediation session in accordance with the provisions of Rule 1:40-4(f).

(c) Mediator Not to Act as Evaluator. The mediator may not subsequently act as an evaluator for any court-ordered report nor make any recommendation to the court respecting custody and parenting time.

Included below is the content of R. 1:40-4 for ready reference:

1:40-4. Mediation - General Rules

(a) Referral to Mediation. Except as otherwise provided by these rules, a Superior Court or Municipal Court judge may require the parties to attend a mediation session at any time following the filing of a complaint.

(b) Compensation and Payment of Mediators. Parties in Superior Court, except the Special Civil Part, assigned to mediation pursuant to this rule shall equally share the fees and expenses of the mediator on an ongoing basis, subject to court review and allocation to create equity. Any fee or expense of the mediator shall be waived in cases, as to those parties exempt, pursuant to Rule 1:13-2(a). A party may opt out of the mediation process after the mediator has expended three hours of service, which shall include preparation and the first mediation session, and which shall be at no cost to the parties. Fees shall be as determined by the mediator and the parties. Failure to pay the mediator may result in an order by the court to pay and imposing appropriate sanctions.

(c) Confidentiality. Except as otherwise provided by this rule and unless the parties otherwise consent, no disclosure made by a party during mediation shall be admitted as evidence against that party in any civil, criminal, or quasi- criminal proceeding. A party may, however, establish the substance of the disclosure in any such proceeding by independent evidence. A mediator has the duty to disclose to a proper authority information obtained at a mediation session on the reasonable belief that such disclosure will prevent a participant from committing a criminal or illegal act likely to result in death or serious bodily harm. No mediator may participate in any subsequent hearing or trial of the mediated matter or appear as witness or counsel for any person in the same or any related matter. A lawyer representing a client at a mediation session shall be governed by the provisions of RPC 1.6.

(d) Limitations on Service as a Mediator.


(1) Mediators shall be qualified and trained in accordance with the provisions of Rule 1:40-12.

(2) No elected official, or candidate for elected office, shall serve as a CDR mediator within the geographic boundary of the elected office.

(3) The approval of the Assignment Judge is required for service as a mediator by any of the following:


(A) appointed public officials;

(B) police or other law enforcement officers employed by the State or any local unit of government;

(C) employees of any court;

(D) government officials or employees whose duties involve regular contact with the court in which they serve; or

(E) elected officials, or candidates for elected office, who wish to serve outside the geographic boundaries of the elected office.

(4) The Assignment Judge shall also have the discretion to require prior review and approval of the Supreme Court of prospective mediators whose employment or position appears to the Assignment Judge to require such review and approval.

(e) Conduct of Mediation Proceedings. Mediation proceedings shall commence with an opening statement by the mediator describing the purpose and procedures of the process. Non-party witnesses may be heard in the discretion of the mediator, and other non-parties shall be permitted to attend only with the consent of the parties and the mediator. Multiple sessions may be scheduled. Attorneys and parties have an obligation to participate in the mediation process in good faith in accordance with program guidelines.

(f) Termination of Mediation.


(1) The mediator or a participant may terminate the session if



(A) there is an imbalance of power between the parties that the mediator cannot overcome,

(B) a party challenges the impartiality of the mediator,

(C) there is abusive behavior that the mediator cannot control, or

(D) a party continuously resists the mediation process or the mediator.

(2) The mediator shall terminate the session if (A) there is a failure of communication that seriously impedes effective discussion, (B) the mediator believes a party is under the influence of drugs or alcohol, or (C) the mediator believes continued mediation is inappropriate or inadvisable for any reason.

(g) Final Disposition. If the mediation results in the parties' total or partial agreement, it shall be reduced to writing and a copy thereof furnished to each party. The agreement need not be filed with the court, but if formal proceedings have been stayed pending mediation, the mediator shall report to the court whether agreement has been reached. If an agreement is not reached, the matter shall be referred back to court for formal disposition.

5:8-1. Investigation Before Award (Continued)

During the mediation process, the parties shall not be required to participate in custody evaluations with any expert. The parties may, however, agree to do so.

The mediation process shall last no longer than two months from the date it commences or is ordered to commence, whichever is sooner. The court, on good cause shown, may extend the time period.

The date for conclusion of mediation shall be set forth in any Case Management Order(s).

If the mediation is not successful in resolving custody issues, the court may before final judgment or order require an investigation to be made by the Family Division of the character and fitness of the parties, the economic condition of the family and the financial ability of the party to pay alimony or support or both.

In other family actions the court may, if the public interest so requires, order such an investigation.

The court may continue any family action for the purpose of such investigation, but shall not withhold the granting of any temporary relief by way of alimony, support or pendente lite orders pertaining to parenting issues under R. 5:5-4 and R. 5:7-2 where the circumstances require.

Such investigation of the parties shall be conducted by the Family Division of the county of venue, notwithstanding that one of the parties may live in another county, and the Family Division shall file its report with the court no later than 45 days after its receipt of the judgment or order requiring the investigation, unless the court otherwise provides.

Such investigation of the parties shall be conducted by the probation office of the county of the home state of the child, notwithstanding that one of the parties may live in another country or state.

5:8-2. Direction for Periodic Reports

If an award of custody of minor children has been made, the court may in its discretion file a certified copy of its order or judgment with the probation office of the county or counties in which the child or children reside with a direction therein to such probation office to make periodic reports to the court as to the status of the custody.

It shall be the duty of counsel to file 2 copies of the order or judgment with the probation office within 2 days, together with information concerning the exact place of residence of the child or children.

Upon the filing of such report, the court may on its own motion and where it deems it necessary, reopen the case and schedule a formal hearing on proper notice to all parties.

A certified copy of a custody decree of another state filed with the Clerk of the Superior Court of this State shall be sent to the probation office of the county or counties in which the child or children reside.

5:8-3. Investigation After Award

The court may on its own motion when it deems it necessary or where an application is made by either party to modify the award or terms thereof, in its discretion require the investigation provided for in R. 5:8-1. The court may continue such application for the purpose of such investigation and report.

5:8-4. Filing of Reports

The written report of an investigation made pursuant to this rule shall be filed with the court, shall be furnished to the parties, and shall thereafter be filed in the office of the Chief Probation Officer.

The report shall be regarded as confidential, except as otherwise provided by rule or by court order.

The report shall be received as direct evidence of the facts contained therein which are within the personal knowledge of the probation officer who made the investigation and report, subject to cross-examination.

5:8-5. Custody and Parenting Time/Visitation Plans, Recital in Judgment or Order

(a) In any family action in which the parties cannot agree to a custody or parenting time/visitation arrangement, the parties must each submit a Custody and Parenting Time/Visitation Plan to the court no later than seventy-five (75) days after the last responsive pleading, which the court shall consider in awarding custody and fixing a parenting time or visitation schedule.

Contents of Plan. The Custody and Parenting Time/Visitation Plan shall include but shall not be limited to the following factors:


(1) Address of the parties.

(2) Employment of the parties.

(3) Type of custody requested with the reasons for selecting the type of custody.



(a) Joint legal custody with one parent having primary residential care.

(b) Joint physical custody.

(c) Sole custody to one parent, parenting time/visitation to the other.

(d) Other custodial arrangement.


(4) Specific schedule as to parenting time/visitation including, but not limited to, week nights, weekends, vacations, legal holidays, religious holidays, school vacations, birthdays and special occasions (family outings, extracurricular activities and religious services).

(5) Access to medical school records.

(6) Impact if there is to be a contemplated change of residence by a parent.

(7) Participation in making decisions regarding the child(ren).

(8) Any other pertinent information.


(b) The court shall set out in its order or judgment fully and specifically all terms and conditions relating to the award of custody and proper support for the children.

(c) Failure to comply with the provisions of the Custody and Parenting Time/Visitation Plan may result in the dismissal of the non-complying party's pleadings or the imposition of other sanctions, or both. Dismissed pleadings shall be subject to reinstatement upon such conditions as the court may order.

5:8-6. Trial of Custody Issue

Where the court finds that the custody of children is a genuine and substantial issue, the court shall set a hearing date no later than six months after the last responsive pleading.

(Personal Note: In all of my years of doing custody work, I have never once experienced or even heard of a custody hearing date being set any earlier than six months after the last responsive pleading, except in one particular County, which was then taking about three years to hold divorce trials.)

The court may, in order to protect the best interests of the children, conduct the custody hearing in a family action prior to a final hearing of the entire family action.

As part of the custody hearing, the court may on its own motion or at the request of a litigant conduct an in camera interview with the child or children.

(Personal Note: In camera judicial interviews of children age seven or older, until quite recently, were mandatory if either the Judge or one of the parents desired that one be conducted. Now, whether or not an interview will be conducted is left entirely to the sound discretion of the Judge.)

In the absence of good cause, the decision to conduct an interview shall be made before trial.

(Personal Note: There was a time not too long ago, where Judges differed widely on when to convene the interview. Some conducted them very early in the case, some just before trial, and still others, following the conclusion of the trial but prior to deciding the parenting issues.)

If the court elects not to conduct an interview, it shall place its reasons on the record.

If the court elects to conduct an interview, it shall afford counsel the opportunity to submit questions for the court's use during the interview and shall place on the record its reasons for not asking any question thus submitted.

A stenographic or recorded record shall be made of each interview in its entirety.

Transcripts thereof shall be provided to counsel and the parties upon request and payment for the cost. However, neither parent shall discuss nor reveal the contents of the interview with the children or third parties without permission of the court.

Counsel shall have the right to provide the transcript or its contents to any expert retained on the issue of custody.

Any judgment or order pursuant to this hearing shall be treated as a final judgment or order for custody.

5:8A. APPOINTMENT OF COUNSEL FOR CHILD

In all cases where custody or parenting time/visitation is an issue, the court may, on the application of either party or the child or children in a custody or parenting time/visitation dispute, or on its own motion, appoint counsel on behalf of the child or children.

Counsel shall be an attorney licensed to practice in the courts of the State of New Jersey and shall serve as the child's lawyer.

The appointment of counsel should occur when the trial court concludes that a child's best interest is not being sufficiently protected by the attorneys for the parties. Counsel may, on an interim basis or at the conclusion of the litigation, apply for an award of fees and costs with an appropriate affidavit of services, and the trial court shall award fees and costs, assessing same against either or both of the parties.

5:8B. APPOINTMENT OF GUARDIAN AD LITEM

(a) Appointment. In all cases in which custody or parenting time/visitation is an issue, a guardian ad litem may be appointed by court order to represent the best interests of the child or children if the circumstances warrant such an appointment.

The services rendered by a guardian ad litem shall be to the court on behalf of the child. A guardian ad litem may be appointed by the court on its own motion or on application of either or both of the parents.

The guardian ad litem shall file a written report with the court setting forth findings and recommendations and the basis thereof, and shall be available to testify and shall be subject to cross-examination thereon.

In addition to the preparation of a written report and the obligation to testify and be cross-examined thereon, the duties of a guardian may include, but need not be limited to, the following:


1. Interviewing the children and parties.

2. Interviewing other persons possessing relevant information.

3. Obtaining relevant documentary evidence.

4. Conferring with counsel for the parties.

5. Conferring with the court, on notice to counsel.

6. Obtaining the assistance of independent experts, on leave of court.

7. Obtaining the assistance of a lawyer for the child (Rule 5:8A) on leave of court.

8. Such other matters as the guardian ad litem may request, on leave of court.


(b) Objection or Refusal of Appointment. A proposed guardian ad litem shall have the right to consent or to decline to serve as such, notice of such decision to be in writing to the court with copies to counsel. The parties shall have the right to object to the person appointed as guardian ad litem on good cause shown.

(c) Term. The term of the guardian ad litem shall be coextensive with the application pending before the court and shall end on the entry of a Judgment of Divorce or an Order terminating the application for which the appointment was made, unless continued by the court. The guardian ad litem shall have no obligation to file a notice of appeal from a Judgment or Order nor to participate in an appeal filed by a party.

(d) Fee. The hourly rate to be charged by the guardian ad litem shall be fixed in the initial appointing order and the guardian ad litem shall submit informational monthly statements to the parties. The court shall have the power and discretion to fix a retainer in the appointing order and to allocate final payment of the guardian ad litem fee between the parties. The guardian ad litem shall submit a certification of services at the conclusion of the matter, on notice to the parties, who will thereafter be afforded the right to respond prior to the court fixing the final fee.

5:8C. APPOINTMENT OF COURT APPOINTED SPECIAL ADVOCATE

In any case in which the welfare of a child is in issue, the court may, on application of any party or on its own motion, appoint a volunteer Court Appointed Special Advocate (CASA), who shall act on the court's behalf to undertake certain activities in furtherance of the child's interests, but who shall not supplant or interfere with the role either of counsel for child appointed pursuant to R. 5:8A or guardian ad litem appointed pursuant to R. 5:8B.

Any such CASA shall be a volunteer associated with a court-authorized or court-operated CASA program. The duties and activities of a CASA program and all of its volunteers shall be in accordance with guidelines established by the Administrative Director of the Courts.

In summary, when the parties cannot reach an agreement regarding the custody of children, the court determines the custodial arrangement that is in the best interests of the children. To make its determination of custody and visitation, the court hears testimony from both parties, any experts they want to present, and any other parties who have direct knowledge of the ability of each spouse to parent the children. The court may also interview the children themselves or appoint a guardian to represent their interests.

Please see our "Child Custody" page to review the factors considered by the courts in awarding custody.