(201) 592-7767 (James Caporrino)

(201) 242-9666 (Andrew/Jill Park)

Cannot locate my spouse, can I still file for divorce?

 

Cannot locate my spouse while filing for divorce? Can I still file for divorce while lost touch with my spouse? The answer is absolutely yes. The law maker has designed a specific process for serving a missing spouse. Even though the process may take a little longer.

When it comes to divorce, many people choose to escape from the unhappy marriage rather than engaging in the divorce proceeding. This might be troublesome for the other party as they cannot properly serve the complaint and summons. One of our client’s husband left the children and the wife for more than 3 years without a single message. The wife completely lost contact with the husband. She has to work to pay for the mortgage and take care of the children at the same time. During the three years, the wife was not able to sell the house or refinance the mortgage because the paperwork requires husband’s signature. Also, The wife was not able to take the children to Korea because application for passports also requires both parents signatures.  It was through publication that the wife finally got the divorce judgment and an order enable the wife to refinance the mortgage on the house. In this article, we will discuss the divorce proceeding that applies if you cannot find your wife or husband.

File Complaint

To start the divorce proceeding, one party needs to file the divorce complaint with the court. To file a complaint, the current address of your spouse is usually required. But if you cannot find your husband/wife, you can state “unknown” on the paperwork. Experienced attorneys will explain your situation in detail in the complaint to put the court on notice that additional steps may be necessary for your case to proceed.

Serving the Summons and Complaint via Publication

After filing with the court, New Jersey Law requires the plaintiff to serve the summons as well as the filed complaint with the defendant. This process is usually referred to as “service”. Services gives court the jurisdiction over the defendant and enables court to make decisions on issues related to the divorce, such as property division, child support and custody, alimony, etc.

New Jersey allows services through Publication once you prove that you’ve exhausted all the possible methods to locate your spouse. New Jersey Court Rule 4:4-5. (Summons; Service on Absent Defendants; In Rem or Quasi In Rem Jurisdiction)requires a diligent inquiry to be done before allowing the service by publication.  Based on our experience, diligent research usually includes, but not limited to:

  1. Contacting your spouse’s relatives, friends and employer;
  2. Internet Search
  3. Conduct a search of the Division of Mortor Vehicle;
  4. Mitilary Search

After conducting all above-mentioned methods, you may file a motion with the court for permission to serve your spouse by publication. Once it’s granted, you need to place a legal notice in local newspapers in the area where your spouse last resided. Detailed requirement will be specified in the court order.

Enter Default Judgement

Once you finished the publication and your still cannot locate your spouse, you can proceed to enter default judgment. You will be required to make appearance at the default hearing. The judge will ask you some basic question about your divorce. The judge is also likely to raise questions regarding your attempts to find your spouse. after the default hearing, the judge will issue the Final Judgment of Divorce.

Park & Caporrino has a strong record of obtaining favorable result to our clients. We have over 25 years of experience in family law in  New Jersey and New York, with a mission to protect what our clients value most. We sincerely hope that you find this article useful, if you have any questions or suggestion regarding our columns, please feel free to email our office at jsp@parkcaporrino.com and aip@parkcaporrino.com or contact us at (201) 242-9666.

Above article is for general guidance only.


Park & Caporrino, LLP
Attorneys at Law.
Licensed in New York and New Jersey

 

Prenuptial Agreement, do you need one?

An opinion about Prenuptial Agreement from an experienced family attorney 

Prenuptial Agreement, do you need one? Many of my clients would ask me that whether it is necessary to get one from an divorce attorney’s perspective. Before I state my personal opinions, I just want to share with you that based on a national survey,  around 50% of marriage end up in divorce, which means 1 out of 2 couples end up in divorce. As a divorce attorney, I have witnessed countless lengthy divorce filled with nasty fights over properties separation and alimony issues, etc that were disastrous to both parties lives. Personally, I will recommend prenuptial agreement  – Just like we all have insurance for cars and houses, why shouldn’t we get an insurance for our marriage. You will definitely be better protected with an prenuptial agreement.

Click to read more about prenuptial agreement and family law
prenuptial Agreement – Park and Caporrino Law Office

What if your fiancee/fiance does not want Prenuptial?

It is common that one party wants the prenup and the other party strongly oppose the idea. It is important to understand just like contract, prenup can be tailed in a way that protects both parties’ interest. I would recommend both parties talk to different attorneys prior to make their decisions. Experienced attorneys assist you in analyzing your situations and help you make a better-informed decision.

What can be inculded in Prenuptial Agreement?

Prenuptial agreement can help you protect premarital assets or even your income during marriage. Here is a list of items that can be regulated by Prenuptial Agreement, not in violation of law:

  1. The ownership of pre-marital assets including but not limited to real properties, stocks, trust account, investment accounts, savings, vehicles and business etc.
  2. Assets values
  3. Amount and terms of Alimony in case of divorce

What can NOT be included in Prenuptial Agreement?

  • Decision regarding child custody and child support.

In New Jersey, when it comes to child custody, the court will always make the decision based on the child’s best interest. Any clause regarding child custody or child support will not be enforceable in later divorce proceedings.  

  • Non-financail matters

Prenuptial agreements are designed to address financial issues. Judge often views prenuptial agreement regulating private matters frivolous, thus strikes them down as unenforceable. For example, we once had client who is a single mother going to get married soon. She wanted to included in the prenuptial agreement that the future husband has to spent at least 2 days a week with her daugher from last marriage. This kind of terms do not address financial issues, thus should not be included in the Pren-up.

  •  Provisions detail anything illegal

Although it may be obvious that prenup should not include anything that is illegal.  I still want to emphasize it since illegal terms may render the whole agreement invalid, thus unenforceable.  

Who should definitely get a Prenuptial Agreement?

We strongly recommend you to obtain a Prenuptial Agreement if following  senarios applies to you.

  1. You have significantly more assets than your future spouse
  2. You are going to earn significantly more than your future spouse
  3. You anticipate to receive a significant amount of inheritance or gift.
  4. You are beneficary of a trust/ trusts.
  5. You have significant debts/ You are marrying someone with significant debts
  6. You own a business
  7. There is child from prior marriages.

Marriage, as an important decision in life, can have a huge impact on your personal life as well as your financial and legal situation. It is important that you understand possible risks and all your options before you make any decisions.

Park & Caporrino has a strong record of obtaining favorable result to our clients. We have over 25 years of experience in family law in  New Jersey and New York, with a mission to protect what our clients value most. We sincerely hope that you find this article useful, if you have any questions or suggestion regarding our columns, please feel free to email our office at jsp@parkcaporrino.com and aip@parkcaporrino.com  or contact us at (201) 242-9666.

Above article is for general guidance only.


Park & Caporrino, LLP
Attorneys at Law.
Licensed in New York and New Jersey

 

Dividing Marital Wealth and Assets in New Jersey

There are two types of marital asset distribution in the United States: 1. Equitable Distribution, 2. Community Property Distribution. New Jersey applies the Equitable Distribution law. This means that rather than splitting all marital assets 50-50, the courts look at the level of contribution each individual has put into obtaining the marital assets.

New Jersey follows a three-step procedure to distribute a couple’s assets. First, the courts determine which assets are subject to distribution, including marital home, bank accounts, debts, stocks, pensions, etc. In general, marital asset is defined as assets obtained by either spouse beginning on the date of marriage. Assets acquired prior to marriage by either spouse may not be subject to distribution in New Jersey and the individual that acquired the asset in question may keep the asset. However, if the other spouse assisted in developing and maintaining the asset in question, the court would distribute the increase in value of the asset. For example, the wife purchased a house before marriage, but the husband, a contractor, installs a better kitchen in the house that increases the value of the house. The increase in value of the house as a result of the new kitchen may be subject to distribution by a New Jersey Court.

Other property that may not be subject to distribution also include inheritance, gifts, and property gained post-filing of divorce. However, if property gained before the marriage is co-mingled with marital assets, the individual assets may be subject to equitable distribution.

Second, the court will need to evaluate the marital assets. This process may become complicated depending on the nature of the asset in question. Assets such as money in savings account may be quickly determined by bank statements, but evaluation of assets such as houses and business may require realtors and investigative accountants to appraise the value of the asset. As such, appraisal of certain marital assets can become complicated and expensive for both parties.

Next, the court will assess the marital property for purposes of distribution. This step may be as straightforward as looking at bank statements or as complicated as retaining an appraiser or accountant to value a business or to analyze business benefits, such as deferred compensation, restricted stock or stock options.

Lastly, New Jersey grants its courts wide discretion to determine the fairest and the most equitable way to split the marital assets. The New Jersey Equitable Distribution Statute, N.J.S.A. 2A: 34-23.1, directs courts to consider the following factors (the list is not exhaustive):

a. The duration of the marriage;
b. The age, physical and emotional health of the parties;
c. The income or property brought to the marriage by each party;
d. The standard of living during the marriage;
e. Any written agreement made by the parties before or during the marriage concerning an arrangement of property division;
f. The economic circumstances of each party at the time the division of property becomes effective;
g. The income and earning capacity of each party, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children, and the time and expense necessary to acquire sufficient education or training to enable the party to become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage;
h. The contribution by each party to the education, training or earning power of the other;
i. The contribution of each party to the acquisition, dissipation, preservation, depreciation or appreciation in the amount or value of the marital property, as well as the contribution of a party as a homemaker;
j. The tax consequences of the proposed distribution to each party;
k. The present value of the property;
l. The need of a parent who has physical custody of a child to own or occupy the marital residence and to use or own the household effects;
m. The debts and liabilities of the parties;
n. The need for creation, now or in the future, of a trust fund to secure reasonably foreseeable medical or educational costs for a spouse or children;
o. The extent to which a party deferred achieving their career goals; and
p. Any other factor which the court may deem relevant.

One important factor considered by the Statute above is the role of the homemaker. Just because one spouse stayed at home to maintain the household and raise the kids without earning an income that does not mean that courts will not consider the homemaker’s contribution towards the development of the marital assets.

In conclusion, this article is a broad overview of New Jersey’s equitable distribution law and is only intended to be an introduction into this area of family law. Having the court distribute the marital assets can be straightforward or highly complicated depending on the nature and the size of the marital assets in question. If you are considering divorce, you should consult a family law attorney to determine your course of action.

* The above is no legal advice but information. Every case must be analyzed based on an individual, case-by-case basis. Please call us for a consultation.