This information is provided as a public service to highlight matters of current interest and does

not imply an attorney-client relationship. It is not intended to constitute a full review of any

subject matter, nor is it a substitute for obtaining specific legal advice from appropriate counsel.

A divorce formally dissolves a legal marriage. While married couples do not possess a

constitutional or legal right to divorce, states permit divorces because doing so serves public

policy. Every state has different rules about divorce. A valid and legal divorce can only be

granted if a party meets the state’s residency requirement for divorce. Whether you're looking

for answers to questions about how to divide property, how to create a parenting plan, or how

much child support or alimony you might get, you need to understand the domestic relations

laws of the state where you live.

Interestingly, and notwithstanding their status as neighbors, New York’s and New

Jersey’s divorce laws, statutes, and legal precedents often keep litigants questioning, whether it

is more advantageous to file for divorce in New York or New Jersey. Especially during the

This information is provided as a public service to highlight matters of current interest and does

not imply an attorney-client relationship. It is not intended to constitute a full review of any

subject matter, nor is it a substitute for obtaining specific legal advice from appropriate counsel.

wife’s incomes and the number of children born of the marriage as variables in the formula.

However, New Jersey, unlike New York, uses two additional variables: the number of overnights

the payee will spend with the children and the ages of the children. Moreover, New Jersey

uses the parties’ net incomes to calculate Basic Child Support. All local, state and federal

taxes are credited. New York support is calculated on approximate gross income, with a credit

only given for local NYC / Yonkers taxes (as well as FICA). The difference between using net

and gross dollars will also affect the calculation of each party’s proportional share of additional

child support expenses, commonly referred to as Add-On Expenses in New York and

maintenance” when referring to spousal support. Under New York law, the amount and

duration of spousal maintenance are initially calculated using a mathematical formula referred

to as the “maintenance guidelines.” This formula considers the gross income of both parties as

well as the length of the marriage. For the purposes of this calculation, the payor of spousal

maintenance has their income capped at a statutory amount. The statutory cap is currently set

at $203,000. A court may deviate from the “maintenance guideline amount” based on

statutory factors, which include: the age and health of the parties, the parties’ present and

future earning capacity, and any other factor the court finds just and proper.

This information is provided as a public service to highlight matters of current interest and does

not imply an attorney-client relationship. It is not intended to constitute a full review of any

subject matter, nor is it a substitute for obtaining specific legal advice from appropriate counsel.

New Jersey uses the term “alimony” when referring to spousal support. Unlike New

York, there is no initial mathematical formula for calculating alimony. Instead, the amount and

duration of alimony is set after the consideration of statutory factors, which include: the actual

need and ability of the parties to pay, the standard of living established in the marriage, and

any other factors which the court may deem relevant. New Jersey law also provides that for

any marriage less than 20 years in duration, the total length of alimony may not exceed the

length of the marriage, except in exceptional circumstances.

There are also some differences with respect to equitable distribution in both states.

residence, you generally lose your separate property claim. Notwithstanding, you can make an

argument for a greater “equitable share” of the home because of the inequities created by your

contribution of separate property assets.

In New York with respect to deferred income as unvested options, restricted stock,

RSUs, and/or REUs, whether granted before or during the marriage, or even shortly after the

date of complaint, generally, courts will look at the time the options were granted / vest and

then apply a coverture fraction to determine equitable distributions. In its basic form, the

denominator of the coverture fraction is the total earning period, and the numerator is the

This information is provided as a public service to highlight matters of current interest and does

not imply an attorney-client relationship. It is not intended to constitute a full review of any

subject matter, nor is it a substitute for obtaining specific legal advice from appropriate counsel.

married years while earning the options. In New Jersey the distribution of these types of assets

in some instances fall under more of an all or nothing test, meaning, the issue is whether stock

options obtained either after the divorce complaint was filed or not yet vested at the time of the

divorce were awarded for past performance or for future performance. If the titled party can

prove it is for future performance, then the argument could be made that no portion of the

options are to be considered marital and subject to equitable distribution.

One final example of the difference is with respect to business valuations and the

concept of “double dipping” into the same income stream. The idea behind “double dipping”

the concept of “double-dipping” in the context of business valuation for divorce purposes. The

Court reasoned that albeit interrelated, the two concepts are separate, distinct, and not entirely

compatible financial exercises, and because asset valuation methodologies applied in the

equitable distribution setting are not congruent with the factors relevant to alimony

considerations.

An experienced and knowledgeable family law attorney can help navigate the difficult

issue of whether to commence an action in New York or New Jersey. If you need legal help for

this or any other family law issue, please contact the New York/New Jersey Metro law team at

This information is provided as a public service to highlight matters of current interest and does

not imply an attorney-client relationship. It is not intended to constitute a full review of any

subject matter, nor is it a substitute for obtaining specific legal advice from appropriate counsel.

Phillips Nizer, LLP. We have offices in both New York and New Jersey and each partner in this

group is licensed to practice in both states.

This information is provided as a public service to highlight matters of current interest and does

not imply an attorney-client relationship. It is not intended to constitute a full review of any

subject matter, nor is it a substitute for obtaining specific legal advice from appropriate counsel.

Partner, NY/NJ Metro Family Law Practice

Partner, NY/NJ Metro Family Law Practice

www.phillipsnizer.com

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