Why Judges Do Not Like Litigation Gambles in New Jersey Divorce Matters

The Gamble of Litigation

When Judges Decide Your Financial Future

UNCERTAIN • EXPENSIVE • RISKY

Understanding the unpredictability of judge-decided outcomes versus negotiated settlements in New Jersey divorce

The Fundamental Uncertainty of Litigation

When you walk into a New Jersey courtroom for a divorce trial, you’re placing your financial future in the hands of a stranger – a judge who doesn’t know you, hasn’t lived your life, and won’t live with the consequences of their decisions. This is the fundamental reality of litigated divorce that many people don’t fully grasp until they’re deep into the process and facing trial.

Unlike negotiated settlements where you and your spouse control the outcome, litigation transfers all decision-making power to the court. The judge will decide who gets the house, how your retirement accounts are divided, whether you pay or receive alimony, how much alimony and for how long, how your business is valued, and how debts are allocated. These are life-altering decisions about your property, your income, and your financial future – and you have no control over them once you choose the litigation path.

This comprehensive guide explores the profound uncertainty inherent in judge-decided divorce outcomes, the factors that make predictions impossible, the financial and emotional costs of this uncertainty, and why experienced divorce lawyers across New Jersey – from Jersey City to East Orange to every county – consistently advise clients that negotiated settlement almost always produces better results than gambling on trial.

Whether you’re working with a divorce lawyer in New Jersey, still deciding whether to hire legal representation, or trying to understand why your attorney is pushing you toward settlement despite your desire to “fight it out in court,” understanding the realities of judicial decision-making is crucial for making informed choices about your divorce strategy.

What Financial Issues Judges Decide in Contested Divorce

When spouses cannot reach agreement through negotiation, mediation, or settlement conferences, a judge must make binding decisions on all contested financial matters. Understanding what’s at stake helps you appreciate the magnitude of uncertainty you’re accepting when you proceed to trial.

Equitable Distribution of Property:

  • Real estate: Who keeps the marital home, vacation properties, investment real estate. Whether properties are sold and proceeds divided. How equity is calculated and allocated.
  • Retirement accounts: Division of 401(k)s, IRAs, pensions, and other retirement assets accumulated during marriage
  • Bank accounts and investments: Division of savings, checking, brokerage accounts, stocks, bonds, mutual funds
  • Business interests: Valuation and division of businesses owned by either spouse, professional practices, partnership interests
  • Vehicles: Who keeps cars, boats, motorcycles, and other vehicles
  • Personal property: Division of furniture, artwork, jewelry, collections, and household items
  • Debt allocation: Who is responsible for mortgages, credit cards, car loans, student loans, and other marital debts

Alimony (Spousal Support):

  • Whether alimony is awarded at all
  • Type of alimony (limited duration, permanent, rehabilitative, reimbursement)
  • Amount of weekly or monthly payment
  • Duration of payments
  • Whether alimony is modifiable or non-modifiable
  • Tax treatment and implications

Every one of these decisions involves judicial discretion, interpretation of facts, credibility assessments, and value judgments – all sources of profound unpredictability.

Understanding Judicial Discretion in New Jersey Divorce

New Jersey divorce law provides judges with enormous discretion in making financial decisions. While statutes establish general frameworks and factors judges should consider, the application of these factors to specific cases involves subjective judgment calls where reasonable judges can (and do) reach vastly different conclusions on identical facts.

Equitable distribution factors under New Jersey law:

N.J.S.A. 2A:34-23.1 lists 16 factors judges consider when dividing marital property. These include duration of marriage, age and health of parties, income and earning capacity, standard of living established during marriage, economic circumstances of each party, contributions to marital property acquisition, and many others. Notice what these factors have in common: they’re vague, subjective, and subject to interpretation.

Consider just one factor: “the contribution of each party to the education, training or earning power of the other.” How does a judge quantify one spouse supporting the other through medical school 20 years ago? How much weight should this receive compared to other factors? Different judges will answer these questions differently, leading to dramatically different property divisions.

Alimony factors and discretion: Alimony involves even more discretion than property division. New Jersey law lists 14 factors for alimony determinations including actual need and ability to pay, duration of marriage, age and health, standard of living, earning capacities, parental responsibilities, time and expense for education or training, contribution to marital property, and more. How should a judge weigh a 15-year marriage versus a 25-year marriage? How much alimony is appropriate for someone who “could” earn more but chooses not to? These are judgment calls, not mathematical formulas.

No two judges are alike: Every judge brings their own life experiences, values, biases, and judicial philosophy to the bench. Some judges are more generous with alimony awards; others are stingy. Some give great weight to homemaker contributions; others focus primarily on income disparities. Some are sympathetic to businesses owners’ claims of limited liquidity; others are skeptical. You cannot predict which type of judge you’ll get or how they’ll view your specific circumstances.

Why Divorce Outcomes Are Fundamentally Unpredictable

Experienced divorce lawyers in Jersey City, East Orange, and throughout New Jersey will tell you: anyone who promises to predict what a judge will do is either lying to you or doesn’t understand the inherent unpredictability of litigation. Here’s why outcomes are impossible to predict with confidence.

Factor 1: Subjective fact-finding and credibility determinations

Divorce trials often involve competing versions of events, disputed facts, and conflicting testimony. Did the husband really work 80 hours per week building the business, or was he exaggerating? Did the wife truly sacrifice her career to support his, or would she have stayed home regardless? Is the spouse claiming disability genuinely unable to work, or malingering to avoid employment?

Judges make credibility determinations – deciding who they believe – based on demeanor, consistency, corroboration, and their own subjective impressions. These credibility calls profoundly affect outcomes. If the judge believes your version of disputed facts, you might win big. If they believe your spouse’s version, you might lose big. You won’t know until the decision is issued, sometimes weeks or months after trial ends.

Factor 2: Expert witness battles

Contested divorces involving businesses, professional practices, or complex assets typically feature dueling expert witnesses. You hire a business valuator who says your spouse’s business is worth $500,000. Your spouse hires a valuator who says it’s worth $200,000. Both are credentialed, experienced professionals using accepted methodologies – they just reach different conclusions based on different assumptions.

The judge must choose between competing expert opinions, or split the difference, or reject both and reach their own conclusion. This choice is inherently subjective and unpredictable. You’re spending $15,000-$25,000 on your expert witness to testify to a valuation that the judge may completely disregard in favor of the opposing expert’s lower number.

Factor 3: The Weight Given to Various Factors

New Jersey law requires judges to consider multiple factors, but doesn’t prescribe how much weight to give each factor. One judge might think a 15-year marriage warrants 10 years of alimony; another might think 5 years is appropriate. One judge might give enormous weight to a spouse’s contribution as homemaker and parent; another might focus primarily on current earning capacity.

Even with identical facts, different judges reach different conclusions because they weight factors differently based on their own values and judicial philosophy. This variability makes outcomes unpredictable.

Factor 4: Your judge’s mood, workload, and personal circumstances

Judges are human. They have good days and bad days. They get tired after hearing testimony for hours. They have personal stress and problems affecting their mood and concentration. The judge presiding over your case might be dealing with a heavy caseload, personal family issues, health problems, or simply having a bad day.

Does this affect their decision-making? Absolutely. Studies show that judges are more likely to grant parole before lunch than after lunch, more generous with favorable rulings early in the day than late in the day, and influenced by countless unconscious biases. You can’t control or predict these human factors, but they significantly impact your outcome.

Factor 5: Complexity of financial issues

The more complex your financial situation, the more unpredictable outcomes become. Simple cases with straightforward income and limited assets are more predictable because there are fewer variables and less room for interpretation. Cases involving businesses, professional practices, stock options, deferred compensation, complex retirement benefits, multiple properties, or sophisticated investment portfolios are highly unpredictable because every asset requires valuation, characterization (marital vs. separate), and allocation decisions.

Property Division: Variables Creating Uncertainty

Equitable distribution in New Jersey aims for “fair” division, not necessarily equal division. But what’s “fair” is entirely subjective and depends on how a judge interprets and applies statutory factors to your specific circumstances.

The marital home – maximum uncertainty:

Consider a common scenario: a couple owns a marital home with $200,000 in equity. Both want to keep it. What will a judge do?

All of these outcomes are possible under New Jersey law. An experienced divorce lawyer in Jersey City or anywhere in New Jersey cannot confidently predict which the judge will choose because it depends on subjective assessments of what’s “fair” given all the circumstances.

Retirement account division complexity:

Retirement accounts accumulated during marriage are marital property subject to division. But how they’re divided involves multiple judgment calls:

  • Pre-marital contributions: How to trace and value contributions made before marriage or after separation?
  • Passive appreciation: Should appreciation of pre-marital portions be divided as marital property?
  • Professional degree enhancement: Should one spouse get a greater share of retirement accounts if they supported the other through professional school?
  • Immediate offset vs. deferred distribution: Should the non-employee spouse receive their share now through offset with other assets, or later when accounts are actually accessed?
  • Valuation methodology: How to value defined benefit pensions with complex formulas and survivor benefits?

Each of these questions involves judicial discretion and unpredictable outcomes. Your spouse’s attorney might argue one position, your attorney the opposite, and the judge might split the difference or choose a third option neither side anticipated.

Alimony: The Area of Maximum Uncertainty

If there’s one aspect of New Jersey divorce more unpredictable than any other, it’s alimony. The combination of vague statutory factors, enormous judicial discretion, and highly fact-specific circumstances makes alimony awards notoriously difficult to predict.

The alimony reform act and ongoing uncertainty:

New Jersey’s 2014 alimony reform created some new guidelines – marriages under 20 years are generally limited to alimony duration equal to the length of the marriage, and alimony generally terminates at retirement age. But enormous discretion remains regarding:

Real uncertainty example: Consider a 16-year marriage where one spouse earns $150,000 and the other earns $40,000. Will the judge award alimony? Probably, but not certainly – the lower-earning spouse is employed and arguably self-supporting. How much alimony? Could be $500/week, could be $1,500/week, could be anywhere in between – depends on the judge’s assessment of “need” and the marital standard of living. For how long? Possibly 16 years, possibly less if the judge finds the recipient can become fully self-supporting sooner. These are all judgment calls with no clear right answer.

Imputed income and employment capacity:

One of the most unpredictable aspects of alimony involves imputing income to a spouse the judge believes could earn more than they currently do. If you’re voluntarily underemployed or unemployed, the judge may calculate alimony based on your earning capacity, not your actual earnings.

But determining earning capacity is highly subjective. Your vocational expert says you could earn $75,000 in your field. Your spouse’s vocational expert says you could earn $120,000. Maybe you haven’t worked in 10 years – what is your realistic earning capacity now? The judge’s conclusion on these questions dramatically affects both the amount and duration of alimony.

Business Valuation Battles: Peak Unpredictability

If you or your spouse owns a business or professional practice, you’re facing one of the most unpredictable aspects of divorce litigation. Business valuation is part science, part art, and entirely subjective when experts disagree.

Why business valuations differ so dramatically:

It’s routine for opposing experts to value the same business at amounts differing by 50%, 100%, or more. The judge must somehow choose between these expert opinions or create their own hybrid valuation – an inherently unpredictable process.

The Professional Practice Problem

Professional practices (doctors, lawyers, accountants, dentists) present unique valuation challenges. Courts must determine whether the practice has transferable value or merely reflects the professional’s personal earning power. Different judges reach different conclusions on similar facts.

For example, a solo law practice might be valued at $500,000 by one expert (considering client relationships, reputation, established systems) or $0 by another expert (arguing clients are loyal to the attorney personally, not the practice entity). The judge must decide, with no clear legal standard providing guidance.

You’re spending $20,000+ on experts and litigation to get an uncertain answer from a judge who isn’t a business valuation expert.

The Certainty and Benefits of Negotiated Settlement

In stark contrast to the uncertainty of litigation, negotiated settlement provides certainty, control, and predictability. When you settle, you know exactly what you’re getting. There are no surprises, no waiting months for a judge’s decision, no wondering if the judge will agree with your expert or your spouse’s.

Certainty of outcome: Settlement means you and your spouse agree on every term. You know exactly how property is divided, exactly how much alimony is paid and for how long, exactly how your business is valued and handled. You can plan your financial future with confidence because the outcome is fixed and known.

Control over the outcome: Rather than surrendering decision-making to a stranger, you maintain control. If the marital home is most important to you, you can negotiate to keep it even if that means accepting less in other areas. If minimizing alimony duration matters more than the amount, you can structure settlement accordingly. Settlement allows creative solutions tailored to your priorities that judges rarely order.

Cost savings: Settlement typically costs 60%-80% less than trial. You avoid the enormous expense of extensive discovery, expert witnesses, depositions, motion practice, and trial preparation. A case that might cost $40,000-$80,000 litigated through trial might cost $8,000-$20,000 to settle through negotiation with a divorce lawyer in East Orange or elsewhere in New Jersey.

Faster resolution: Trials require months of preparation, discovery, expert reports, and waiting for court dates. Settlement can happen in weeks or months rather than years. The sooner you settle, the sooner you move forward with your post-divorce life.

Privacy protection: Settlement negotiations are confidential. Trial testimony becomes public record. If you value privacy – and most people do – settlement protects details of your finances, your marriage, and your personal life from public exposure.

Preservation of relationships: If you have children and must co-parent long-term, settlement preserves the ability to communicate and cooperate. Trial creates or deepens animosity that makes co-parenting difficult for years or decades. Every experienced divorce lawyer will tell you: the most damaged parent-child relationships come from families where parents destroyed each other in court.

Real Case Examples of Litigation Uncertainty

These composite examples based on actual New Jersey divorce cases illustrate how unpredictable litigation outcomes can be.

The Business Valuation Gamble

Facts: 18-year marriage. Husband owns successful contracting business. Wife supported him while he built the business and raised their three children. Settlement discussions: Wife’s attorney suggests business is worth $800,000, seeks 50% ($400,000). Husband’s attorney argues business worth $250,000, offers $125,000. Parties cannot agree.

Trial outcome: Each side spends $25,000 on business valuation experts and legal fees for trial. Wife’s expert testifies to $850,000 value. Husband’s expert testifies to $180,000 value. Judge finds business worth $425,000, awards wife 40% ($170,000) payable over 5 years.

Result: Wife received $170,000 after spending $25,000 on experts and fees = net $145,000. She would have netted more accepting husband’s $150,000 settlement offer and avoiding $25,000 in litigation costs. Wife also must wait 5 years for full payment rather than receiving settlement funds immediately. Both parties spent combined $50,000 fighting over an issue they could have resolved for less than the cost of fighting.

The Alimony Surprise

Facts: 14-year marriage. Husband earns $180,000. Wife left career earning $55,000 to raise children, now unemployed for 6 years. Husband offers $800/week alimony for 10 years. Wife demands $1,500/week for 14 years.

Expectation: Wife’s attorney believed judge would award $1,200-$1,400/week for 12-14 years based on length of marriage, income disparity, and wife’s career sacrifice.

Trial outcome: Judge imputes income of $45,000/year to wife (finding she could return to workforce), awards $900/week alimony for 7 years, finding wife should become self-supporting after rehabilitation period.

Result: Wife received less per week and for shorter duration than husband’s settlement offer. After litigation costs, wife netted far less than if she’d accepted the settlement proposal.

The Property Division Shock

Facts: 22-year marriage. Primary assets: marital home ($450,000 equity), husband’s 401(k) ($380,000), wife’s smaller 401(k) ($90,000). Wife wants to keep home and split retirement accounts 50/50. Husband wants to sell home, each take their own retirement account.

Wife’s expectation: Based on her attorney’s advice, wife expected to keep the home and receive half of husband’s 401(k) ($190,000).

Trial outcome: Judge orders home sold, proceeds split 60/40 favoring husband (based on his larger financial contributions to down payment and mortgage). Each spouse keeps their own retirement account. Wife receives $270,000 from home sale but nothing from retirement accounts.

Result: Wife must find new housing, received less total property than expected, and now has no retirement savings after receiving only her smaller 401(k) which she must tap for housing costs. Outcome neither party predicted or wanted.

The True Cost of Litigation vs Settlement

Understanding the financial cost of uncertainty helps put litigation risk in perspective. When you choose to litigate rather than settle, you’re not just gambling on an unknown outcome – you’re paying enormous sums for the privilege of gambling.

Typical litigation costs through trial:

  • Attorney fees: $25,000 – $75,000+ per spouse for cases going to trial (complex cases can exceed $100,000)
  • Business valuation expert: $15,000 – $30,000 for evaluation and testimony
  • Vocational expert: $5,000 – $15,000 for earning capacity evaluations
  • Real estate appraisal: $500 – $2,000 per property
  • Forensic accountant: $10,000 – $40,000 for complex financial analysis
  • Custody evaluator: $5,000 – $20,000 (if custody is disputed)
  • Deposition costs: $2,000 – $8,000 for transcripts and court reporter fees
  • Court costs and filing fees: $1,000 – $3,000

Total per spouse: $60,000 – $150,000+

Combined cost to both spouses: $120,000 – $300,000+

Settlement costs through negotiation:

Total per spouse: $8,000 – $25,000
Combined savings versus trial: $100,000 – $250,000

What those savings mean: The money you save by settling rather than litigating can fund your children’s college education, provide a down payment on your new home, create financial security during your transition, or simply remain in your pocket rather than enriching attorneys and expert witnesses. Every dollar spent on litigation is a dollar not available to support your post-divorce life.

When Trial May Be Necessary Despite the Risks

While settlement is almost always preferable, some circumstances may justify accepting the risks and costs of trial. Understanding when litigation might be necessary helps you make informed strategic decisions with your attorney.

Situations where trial may be unavoidable:

Even When Trial is Necessary, Uncertainty Remains

Important to understand: even in cases where trial is necessary because settlement isn’t achievable, all the uncertainty and unpredictability discussed in this guide still applies. You may have no choice but to proceed to trial, but that doesn’t make the outcome any more predictable or the costs any lower.

Working with an experienced divorce lawyer in New Jersey helps you understand when settlement truly isn’t possible versus when you’re choosing trial for emotional rather than strategic reasons. Good attorneys help clients distinguish between cases that must be tried and cases where ego or anger is driving the litigation decision.

Working with a Divorce Lawyer: Managing Uncertainty

If you’re facing divorce with contested financial issues, working with an experienced divorce attorney doesn’t eliminate uncertainty – but it helps you navigate it more effectively and make informed decisions about settlement versus trial.

What a good divorce lawyer does:

Red flags – signs your attorney isn’t serving you well:

Finding the right attorney: Whether you need a divorce lawyer in Jersey City, East Orange, or elsewhere in New Jersey, look for attorneys who:

Hudson County and Essex County Divorce Considerations

While the fundamental uncertainty of litigation applies throughout New Jersey, understanding local court practices in Hudson County (Jersey City, Hoboken, Bayonne) and Essex County (East Orange, Newark, Montclair) helps you and your attorney develop appropriate strategy.

Hudson County Superior Court practices:

The Hudson County Superior Court located in Jersey City handles all family law matters for the county’s 12 municipalities. The court actively encourages settlement through case management conferences, early settlement panels, and mandatory economic mediation for cases involving financial disputes.

Hudson County judges vary in their approaches to financial issues, with some being more conservative with alimony awards and others more generous. This judicial variability within a single county illustrates the unpredictability problem – you won’t know which judge you get until your case is assigned, and different judges would reach different conclusions on your case.

Essex County Superior Court practices:

Essex County, serving East Orange, Newark, and surrounding communities, similarly requires economic mediation and actively pushes cases toward settlement. The volume of cases in Essex County (New Jersey’s second-largest county by population) means trials can be delayed significantly, adding to the uncertainty and stress of litigation.

Local attorney relationships matter:

Working with a divorce lawyer who regularly practices in your county provides advantages. Attorneys familiar with local judges understand their tendencies, preferences, and typical approaches to common issues. This local knowledge doesn’t eliminate uncertainty but helps inform settlement strategy and trial preparation.

Frequently Asked Questions

What financial issues can a judge decide in divorce?

Judges can decide all contested financial issues including property division (real estate, retirement accounts, bank accounts, business interests, vehicles, personal property), debt allocation, alimony (whether awarded, amount, duration, type, modifiability), business valuations, and all other economic matters when spouses cannot reach agreement. The judge’s decision is binding and difficult to appeal, making the uncertainty of litigation particularly risky.

How predictable are judge’s decisions in divorce cases?

Judge’s decisions are inherently unpredictable for multiple reasons: broad judicial discretion in applying vague statutory factors, subjective credibility determinations, competing expert witness opinions, different judges weighting factors differently based on personal values, and countless human variables affecting judicial decision-making. While attorneys can provide ranges of likely outcomes, no one can predict with confidence what a specific judge will decide on contested issues.

What are the benefits of negotiated settlement over trial?

Negotiated settlements provide certainty (you know exactly what you’re getting), control (you decide outcomes rather than surrendering to a judge), substantial cost savings (60%-80% less expensive than trial), faster resolution (months versus years), privacy protection (negotiations are confidential versus public trial testimony), preservation of relationships (important for co-parenting), and ability to craft creative solutions tailored to your specific circumstances that judges rarely order.

Can attorneys predict what a judge will decide?

No attorney can predict with certainty what a judge will decide on contested issues. Experienced divorce lawyers can provide ranges of likely outcomes based on their knowledge of the law, local judges’ tendencies, and similar cases, but these are educated guesses, not guarantees. Any attorney who promises specific outcomes or guarantees victory at trial is either lying or doesn’t understand the fundamental unpredictability of litigation. Honest attorneys explain the range of possible outcomes and the uncertainty inherent in judicial decision-making.

How much does divorce litigation cost versus settlement?

Litigation through trial typically costs $60,000-$150,000+ per spouse including attorney fees, expert witnesses, depositions, and court costs. Combined costs for both spouses can reach $120,000-$300,000+. Settlement through negotiation typically costs $8,000-$25,000 per spouse. The savings of $100,000-$250,000 combined represent money that could fund children’s education, provide housing down payments, or create financial security rather than enriching attorneys and experts.

Why do business valuations differ so much between experts?

Business valuations differ dramatically because experts use different methodologies (asset approach, income approach, market approach), make different assumptions about growth rates and discount rates, disagree about adjustments to income, apply different standards for goodwill and marketability discounts, and exercise subjective judgment at multiple decision points. It’s routine for opposing experts to value the same business at amounts differing by 50%-100% or more. The judge must somehow choose between these expert opinions – an inherently unpredictable process that makes business valuation cases particularly uncertain.

When is trial necessary despite the uncertainty?

Trial may be necessary when your spouse refuses reasonable settlement and won’t negotiate in good faith, when there’s evidence of hidden assets or financial fraud requiring court discovery powers, when domestic violence or safety concerns make negotiation inappropriate, when serious parenting concerns require court-ordered evaluations and judicial decisions, or when extreme power imbalances make fair settlement impossible. However, even in these situations where trial is necessary, all the uncertainty, unpredictability, and costs still apply.

Should I accept a settlement offer that’s less than I think I deserve?

This depends on comparing the settlement offer to the likely range of trial outcomes accounting for uncertainty and costs. A settlement that gives you 60%-70% of what you want with certainty is often better than gambling on trial where you might get 100% or might get 30%, minus the enormous cost of litigation. Work with your attorney to objectively evaluate settlement offers considering: the range of likely trial outcomes, the cost of litigation, the time delay until trial, the emotional toll, and the risks of an unpredictable judicial decision. What looks like “less than you deserve” might actually be a smart strategic choice.

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The decision between settlement and trial is one of the most consequential choices you’ll make in your divorce. Understanding the profound uncertainty of litigated outcomes, the enormous costs of fighting in court, and the benefits of negotiated resolution empowers you to make strategic decisions rather than emotional ones.

Whether you’re working with a divorce lawyer in Jersey City, consulting with a divorce lawyer in East Orange, or seeking representation anywhere in New Jersey, choose an attorney who will be honest about the risks and uncertainty of litigation while working diligently toward settlement that serves your interests.

The goal of divorce representation isn’t to “win” by defeating your spouse in court – it’s to achieve an outcome that allows you to move forward with your financial security intact, your children protected, and your dignity preserved. Settlement accomplishes these goals far more effectively than the unpredictable gamble of trial in the vast majority of cases.

CERTAINTY • CONTROL • COST SAVINGS

Why Settlement Beats Litigation

Experienced legal guidance for navigating divorce in New Jersey

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Disclaimer: This information is provided for educational purposes only and does not constitute legal advice. The information on this page describes general principles of judicial uncertainty and litigation risk, but every case is unique and outcomes depend on specific facts, applicable law, and judicial discretion. This content should not be relied upon as a substitute for consultation with a licensed New Jersey attorney who can evaluate your specific circumstances and provide personalized legal advice. Laws, court rules, and judicial practices are subject to change. No attorney-client relationship is created by reading this information. For legal advice specific to your divorce case, consult with an experienced divorce lawyer in New Jersey.

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