In New Jersey, how long does a couple have to be separated before a no fault divorce can be entered?
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There are only two grounds for divorce in North Carolina. The first is a one-year separation. You must assert, under oath, that you and your spouse have been living separate and apart for one year. It is not enough to assert that you have lived in separate bedrooms, or that you have not engaged in acts of sexual intercourse. You must live in separate residences during that year. You do not need to file any papers to document the beginning of your separation; your assertion is sufficient to prove that the year has elapsed. The second ground for divorce in North Carolina is incurable insanity.
In North Carolina the process of dividing the property and debts of a marriage is called Equitable Distribution. Equitable Distribution is a three step process conducted by the court when spouses are unable to divide property on their own. The first step in the process is "identification". The court must determine which property is marital and which is separate. Separate property is property owned before marriage, inherited property and gifts. Separate property used to purchase jointly held real estate becomes marital property. Most of the remaining property is designated as marital property. The second step is "valuation". This is the assignment of a fair market value to each piece of marital property. Frequently, appraisers and other experts assist in this step of the process. The fair market value is the amount that would be paid by a willing buyer to a willing seller. The final step is "distribution". The court will distribute the property equally unless there are factors present in your case which indicate that an equal division would not be equitable.
When you need to transfer an interest in a qualified retirement plan, you'll need to use a QDRO, a Qualified Domestic Relations Order. In QDRO language the person whose interest is being transferred is called the "participant" (because they're a participant in the retirement plan). The person to whom the interest is transferred is called the "alternate payee." It's usually the divorcing spouse, but it could also be a child. When dividing a Defined Benefit Plan (Pension) in a divorce case, the QDRO can be drafted using either a Shared Interest approach or a Separate Interest approach. The main difference between the two is that Separate Interest is based on the Alternate Payees lifetime and Shared Interest is based on the Participants lifetime. Below are some pros and cons of each approach:
SEPARATE INTEREST. Adjusts the amount of the award to be paid over the lifetime of the Alternate Payee rather than the Participant's lifetime. Post-retirement survivorship language for the benefit of the Alternate Payee is not required, because he or she is automatically guaranteed a lifetime of actuarially-adjusted benefits. It is still necessary to include pre-retirement survivorship language to secure the Alternate Payee's right to benefits in the event of the Participant's death before retirement. The Alternate Payee can choose to begin receiving benefits at a different time than the Participant. If the Alternate Payee is much younger than the Participant, this approach is not favorable. If the Alternate Payee predeceases the Participant, the benefit may revert back to the Participant or just disappear.
SHARED INTEREST. Benefits are adjusted over the lifetime of the Participant. Must have pre- and post-retirement survivor language in the QDRO to secure the benefit for the Alternate Payee in the event that the Participant dies first. Only method allowed if the Participant has already retired. In the event that the Alternate Payee predeceases the Participant, the benefit reverts back to the Participant (if allowed by the plan). Participant must begin receiving benefits before the Alternate Payee may receive benefits. If the Alternate Payee is younger, he or she will receive more benefits using this method since the benefit is actuarially based on the Participant's life expectancy.
Property settlements should spell out the terms of the division of the pension. It is not uncommon to see agreements containing clauses such as the pension will be divided between the parties. Unless survivorship issues are agreed upon and put into the agreement, it is likely that one may be forced to use the Separate Interest approach, which may not be consistent with best interests.