3 Tiers of The Legal Framework in Divorce

Introduction

Legal framework—it’s the first thing you need to grasp when diving into the whirlpool of divorce.  Forget the tearful nights or the tug-of-war over the coffee maker for a moment. Hey, it’s DubG from Mom Versus the World. We’re about to embark on a journey through the legal labyrinth that dictates who gets what, from the dog to the darned vinyl collection. Today, I’m going to break down what I’ve come to understand as the legal maze of divorce, from laws and precedents to those “norms” I’ve been told that everyone is expected to follow.

What I found most interesting in my research and why I dug so deep is how most of this seemed to get thrown out the window during my divorce process. Can you say misconduct? But let’s be real here: I live in Tri-State, so the “Norms” also include that unspoken rule of being as twisted as a pretzel from the sidewalk of New York.

The Legal Framework Hierarchy: It’s Not Just a Fancy Term

When it comes to divorce in the U.S., there’s a three-tiered system that’s as layered as my favorite triple chocolate cake. Here’s the breakdown:

1. Statutory Laws (aka The Big Rule Book): These are the official rules, the ones that the government writes down in fancy language. Think of them as a top-down approach. The bigwig politicians at the city, county, state, or even country level (the judge’s boss)  decide on these, and then the courts get to play by these rules.
2. Precedents (or That Thing That Happened Before): Also known as case law or common law. It’s like when your older sibling did something, and now you have to follow suit because, well, precedent.
3. Legal Norms (The Unwritten Rules): These are the customs and practices that everyone just “knows.” It’s like that unspoken rule of not taking the last slice of pizza without asking.

Statutory Laws: The Boss Bitch of Divorce

When it comes to divorce, there’s a legal framework that’s as structured as my attempt to organize my shoe closet. These are the laws that the big shots in the government decide on, jot down in their fancy legal lingo, and then expect the courts to follow. Each jurisdiction, meaning state and sometimes by county or district, can have drastically different statutes.

New Jersey Family Law Statutes

Again, I live in NJ and since I’m not a lawyer and this is certainly not legal advice (God help you if it were), I can only speak to what I learned, or at least think I understand, that had to do with my case. I’m adding these here to give you a sense of what your jurisdiction might look or sound like. One huge problem I had in my research, especially when I first started trying to self-educate and earn myself  a non-official, self-proclaimed law degree, was that I really had no idea what to ask, so I had no idea how to properly prepare for things that may happen in my next hearing.  In everything I write, I try to help you know what you don’t know, or at least some of it. Does that make any sense?

So… NJ has a whole bunch of statutes that sound as complicated as trying to decipher a teenager’s text messages. This does not include all of the NJ family law statutes or even go into details, but it will give you an idea of what kind of rules there are and for what:

• NJ Statutes Annotated Section 2A:34-8: This covers grounds for divorce in New Jersey. On the menu, you’ll find adultery (classic), desertion (ghosting, but make it legal), extreme cruelty (no, not forgetting to take out the trash), and a few more. Oh, and if you both just can’t stand each other? There are “irreconcilable differences” for that. Basically, NJ’s got a buffet of reasons to call it quits.
• NJ Statutes Annotated Section 2A:34-11: Alimony is a monthly reminder of your failed marriage. But hey, if you are on the receiving side, I suppose it doesn’t really suck. The court’s got a whole checklist to see who gets what. Age, health, earnings—it’s like a twisted dating profile.
• NJ Statutes Annotated Section 2A:34-23.3 & 2A:34-23.4: This one I am about to dive deep into, due to my continued personal saga, enforcement of alimony and modification of alimony   Think of these as the “You better pay up” sections. Whether it’s give me the alimony or the alimony needs to be adjusted a bit, NJ’s got rules. And trust me, you don’t want to be on the wrong side of them. I am on the right side for once.
• NJ Statutes Annotated Section 2A:34-23.1: This one will be written into my next motion to the court as well: enforcement of child support orders. Child support’s no joke. If someone’s trying to dodge their responsibilities, NJ’s got ways to remind them. From holding onto their tax refunds to taking away their licenses, it’s like a parental timeout.
• NJ Statutes Annotated Section 2A:34-23.2: Modification of child support orders. When it comes to kids, NJ’s all heart. It’s all about what’s best for the little ones. So, if you’re hoping to use your kid as a pawn, think again.
• NJ Statutes Annotated Section 2A:34-23.3: This section pertains to the modification of custody and visitation orders. It outlines the circumstances under which a court may modify an existing custody or visitation order and the factors that the court must consider in making such modifications.
• NJ Statutes Annotated Section 2A:34-23.6: Next up, enforcement of orders for the payment of college expenses. College ain’t cheap. If there’s an order to help pay for it, this section’s the enforcer. So, no, you can’t just “forget” to help with tuition.
• NJ Statutes Annotated Section 2A:34-23: More on kids. Because, let’s face it, they’re the real MVPs in this mess. This section is  the playbook for child custody and visitation arrangements,  figuring out who gets to see them and when.
• NJ Statutes Annotated Section 2A:34-23.1: Relocation of a child by a custodial Parent. Thinking of relocating and taking the kids? Not so fast. There’s a whole procedure for that. And no, “I just felt like it” won’t cut it.
• NJ Statutes Annotated Sections 2A:34-23.5 & 2A:34-23.2: These are the “Don’t even think about breaking the rules” sections, or enforcement of out-of-state custody orders. Whether it’s custody, visitation, or enforcing orders from another state, NJ’s watching.
• NJ Statutes Annotated Section 2A:34-23.3 & 2A:34-23.4:  Lastly, for those unexpected players, this addresses the rights of grandparents and siblings in custody and visitation matters. Yep, they have rights too. So, if grandma wants to see the kids, you might just have to deal with her “back in my day” stories a bit more.

Precedent/Case Law/Common Law: When Judges Play Cupid

Ever heard of “common-law marriage”? No, it’s not when you’ve been with someone so long that you feel married. It’s when you’ve acted so married that the law’s like, “Fine, you’re hitched.” This whole shebang started with some old-timey judges in England. He looked at a couple who’d been playing house for ages, sharing cash and kids, and thought, “Eh, close enough.”

This judge scribbled his thoughts in the “common laws—basically, the OG judge-made laws. So, instead of laws made by those stuffy legislators, these are the “we’ll make it up as we go” kind. Think of it as the “bottom-up” approach to law, like the DIY of the legal world and they are also known as Precedents. 

Precedent, case law, and common law are kind of like the  “Been There, Done That” of law, but some are stickier than others.

Binding precedents

These are those hard-and-fast rules based on the things you’ve learned from the past. Sort of like when I learned that I shouldn’t light the BBQ grill with a match, right after I drenched my freshly curled hair with a can of Aquanet Maximum Hold. They’re decisions made by courts that are either higher up in rank or the same, sometimes even a lower ranking court, but in the past. These rules are  pretty much a must, UNLESS the statute (statute trumps precedent) says otherwise or until another precedent overrules or changes that precedent.

Persuasive precedents

 On the other hand, these kinds of suggestions are more like suggestions. Maybe it’s advice from a friend who’s been in a similar situation but not quite the same, because he lives in a land far, far away. Or maybe it’s from someone who’s been through something totally different but has some wisdom to drop, because the same logic could be applied to your situation if the judge feels like it or just doesn’t like your ex. But here’s the kicker: a judge always gets to decide how much weight a precedent holds. Even if it’s a binding “you gotta do it this way” kind of rule, if the judge thinks it’s not relevant, it’s not and it’s outta there.The Unspoken Rules of Court Beyond the written rules and “been there, done that” decisions, there’s this thing called legal norms. Think of them as the unwritten rules of the game. They’re like the etiquette of the courtroom, especially in places like family court, where things can get… well, personal.

International Family Law Drama

Ever thought your family issues were just local gossip? Think bigger. We’re talking international conventions and treaties. It’s like the universe’s way of saying, “Hey, let’s have some ground rules when family feuds cross borders.

These fancy-schmancy agreements are the rulebook for the big stuff: kids getting snatched across countries, who gets weekend visits when parents are from different continents, and adopting kiddos from lands far, far away. Once a country signs on the dotted line, it’s like they’ve made a pinky promise to play by these rules in their own backyard.

Now, while these global handshakes have some weight, they’re not the main act in the legal circus. They’re more like the opening band before the main show. They add some flair and set the tone, but the real show is the local laws, the age-old decisions, and the unwritten rules of the game. But when do family matters get a passport stamp? These international agreements are the tour guide, making sure everyone’s singing to the same tune.

Court Rules: The Legal Tightrope, One Slip, and You’re Out!