22 Aug I make more than my husband. What happens to alimony in divorce?
Q. I’m about to file for divorce and we have two minor children. I will get sole custody. I make more money than my husband. Does that mean I won’t get child support or alimony?
A. There’s a lot to consider here.
Issues of custody and parenting time are separate from alimony obligations in the case of a divorce.
It is uncommon for a court to award a parent sole legal custody in New Jersey because both parents have the legal right to participate in major decisions made on behalf of the child or children, said Jeralyn Lawrence, a family law attorney with Lawrence Law in Watchung.
“Absent abuse or neglect of the child, or a condition rendering a parent unable to participate in these decisions — such as addiction to illicit substances and the like — a court will grant the parties joint legal custody, enabling both parents to participate in decisions impacting the health, safety, education and well-being of the child or children,” Lawrence said.
She said New Jersey courts attempt to give parents equal opportunity to spend time with children born of the marriage, assuming that an equal parenting time schedule is in the best interests of the children involved.
That’s why sole custody is extremely rare, she said.
Divorcing parents are free to agree on a parenting time schedule that works best for their specific circumstance, she said, noting there is no one-size-fits-all parenting time schedule. She said divorcing parents should be encouraged to communicate, cooperate and compromise with one another to agree on a schedule that works best for their family.
“Flexibility and communication between parents are key to achieve this goal,” she said. “Retaining an attorney with specialized knowledge and experience in divorce and family law will assist you in achieving a fair and reasonable resolution to these issues, among others, incident to your divorce.”
Now to the money.
Alimony and child support are treated as two separate considerations under New Jersey law, Lawrence said.
“Depending on the facts and circumstances of any given case, a parent may be required to pay child support for the benefit of the child or children,” she said. “It is possible for a recipient of child support to also pay alimony because child support is considered the right of the child, and not the parent.”
Courts in New Jersey use the Child Support Guidelines to determine an appropriate child support obligation, she said.
The guidelines consider numerous factors which do include your respective incomes, but also the parenting time schedule, alimony paid or received, and the cost of health insurance for the child, among other considerations,” Lawrence said. “With a shared parenting time schedule, it is likely the higher earning spouse will have a child support obligation to the other.”
Unlike child support, which is determined by the guidelines, alimony is determined by weighing various factors, Lawrence said.
“To determine an appropriate award of alimony, our courts weigh the income of the parties, and consider the extent of assets, debts, as well as the parties’ work and education history, among other factors,” she said. “Generally, the higher earning spouse will have alimony exposure, subject to consideration of the foregoing factors.”
You should speak to an experienced family law attorney who can look at your specific situation.
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This story was originally published on Aug. 22, 2022.
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