Divorce & Annulment
Ten Things You Should Know Before Filing for Divorce
The Divorce Process
THE DIVORCE PROCESS
1. The Complaint
A divorce begins with the filing of a Complaint for Divorce in the Superior Court of New Jersey, Chancery Division, Family Part, in the county where the parties' reside(d). The Complaint notifies the Court that you want to end your marriage. Rule 5:4-2 states the requirements for filing the Complaint for Divorce. The cost for filing the Complaint for Divorce with the Court is $250.00 if no children were born during the marriage. The cost is $275.00 if children were born during the marriage.
Each Complaint for Divorce must be accompanied by the following:
Once the Complaint for Divorce is filed with the Court, it must be served on the Defendant along with a Summons instructing the Defendant that he or she has 35 days from the date of service to file an Answer to the Complaint or otherwise plead. The Defendant may be served in person by a sheriff or through his or her attorney. Proof must be filed with the Court that the Defendant has been served appropriately.
2. Causes of Action for Divorce
N.J.S.A.2A:34-2 states the causes of action for divorce in New Jersey, which are as follows:
3. Answer to the Complaint and Counterclaim for Divorce
After a Complaint is served, the Defendant is entitled to file an Answer or otherwise plead within 35 days. If the Defendant fails to file an Answer or otherwise plead, default will be entered against the defendant, who may then lose the right to present his or her side of the case to the Court.
4. Emergent Relief - Order To Show Cause
Upon filing of a Complaint for Divorce, the Plaintiff may also file an application with the Court seeking emergency relief. This form of application is called an Order To Show Cause. These applications are not granted easily and the Plaintiff must show that "immediate and irreparable damage" may result to the Plaintiff or to the minor children before notice can be served on the Defendant. (R.4:52-1.)
5. Pendente Lite Motions
In some New Jersey counties, it literally takes years for the divorce litigation to be completed. Some issues such as temporary support and parenting time cannot wait to be resolved. If the parties cannot reach an interim agreement on these issues, the proper application is called a pendente lite motion.
Pendent lite motions are applications filed with the Court seeking temporary relief. The relief requested can take the form of temporary custodial arrangements, child support, parenting time, spousal support, restraints from liquidating or disposing of marital assets, payment of ongoing household expenses, naming experts to value marital homes or businesses, and counsel fees. The relief granted is called an Order which is entered by the Court to resolve these issues temporarily until the entry of a Final Judgment of Divorce. A temporary Order may be modified by the Court at any time during the litigation based on appropriate circumstances.
6. Case Management Conference and Case Management Orders
Soon after the Complaint for Divorce and the Answer have been filed with the Court, the Court will schedule a Case Management Conference with the attorneys, which is handled by telephone. The purpose of this conference is to determine the deadlines for discovery during the litigation and to designate the experts who will appraise real estate and other assets and the party or parties who will be responsible for paying the experts.
Each matrimonial case is assigned a specific management track, i.e. priority, complex, expedited, or standard track, based on the complexity of the case. (R.5:1-4).
If there are children involved, the parties in the divorce action will also be scheduled to attend Custody Mediation. As a result of this conference, the Court will enter a Case Management Order which will reflect the schedules reached at the conference.
7. Custody Mediation
If there are children involved, the Case Management Order will require that both parties appear in Court on a certain date for an introduction to the Custody Mediation Program. This service of the Court system was designed to facilitate the resolution of custody and/or parenting time issues between parents so that whenever possible, these important matters can be resolved between the parents with the aid of a mediator rather than through expensive and traumatic litigation.
At the initial session, the parties will review a video tape of a lecture by an excellent child psychologist who will explain how divorce affects children and suggest ways to avoid or minimize the adverse effects to the greatest extent possible. In addition, a Judge will explain the Mediation Program to the assembled parents.
After that, both parties will meet with a representative of the Mediation Program so that they can set up a mutually convenient date and time for their first mediation session. There may be as many as three mediation sessions, if necessary. It is not necessary for the attorneys to be present with their clients on that date, since the introductory session is not an actual Court proceeding and no decisions need to be made other than when the mediation sessions will be held.
The Mediation Program is a free service to the community. The mediators are well trained to try to help people resolve their own problems for the benefit of their children. In the event that the parties are able to reach a parenting agreement at a mediation session, the mediator will draw up a written record of what the parties have agreed to and will ask both to sign it. However, both parties should rest assured that such an agreement is not binding upon either party until each has had the opportunity to review it with his or her respective attorney. Thereafter, if both parties still wish to be bound by the agreement, it will be entered into a Consent Order. The Order will be submitted to the Court and, once the Judge signs it, it will thereafter be binding upon both of the parties.
Each spouse is entitled to information from the other spouse which will provide the Court with essential information needed to resolve the case. For example, the Court needs to know all of the assets and debts acquired by the parties during the marriage, the respective income of the parties, the names and dates of birth of all children born during the marriage, etc. The legal procedure for obtaining that information is called "discovery." Discovery may be a simple, speedy, process or one consuming a great deal of time, energy, and money.
There are several different discovery procedures and each party should consult with his or her attorney to decide which procedure is best for each one's particular case. Some forms of discovery include the following:
9. Matrimonial Early Settlement Panel
New Jersey Courts require the parties to attend a Matrimonial Early Settlement Panel (MESP) upon the completion of all discovery. These panels are conducted at the Courthouse out of the presence of a Judge. Usually, two (2) to three (3) matrimonial lawyers sit on each panel. Both parties' attorneys present their side of the case to the panel members out of the presence of the clients. The panel members will then render a recommendation to the attorneys to resolve the entire matter. This recommendation is based upon the members' experience as matrimonial attorneys and how they feel a Judge would decide the issues if the matter went to trial.
If both parties accept the panel's recommendation, they can be divorced that day by placing the terms and conditions of the settlement on the record before a Judge.
If both parties do not accept the panel's recommendation, the Judge will list the matter for trial on a specific date.
10. Property Settlement Agreement
Most lawyers and judges would prefer that the parties resolve the issues between them by their own agreement. A trial judge is a stranger to both parties, yet he or she may be called upon to make decisions affecting their lives.
Many divorce matters are resolved by comprehensive agreements called Property Settlement Agreements. These agreements contain very specific terms and conditions that resolve all issues between spouses including, but not limited to, custody, child support, parenting time, alimony, equitable distribution of assets and debts, and counsel fees. If the parties enter into such an agreement, and the agreement is prepared appropriately, it is a binding contract between the parties. It will be incorporated into a Final Judgment of Divorce, or literally attached to the divorce decree.
Statistics show that people are more likely to comply with the terms of an agreement they negotiated themselves than they are to comply with a decision that has been forced upon them by the Court.
If the matter is not settled by a negotiated agreement or at the time of the MESP panel, it will be listed for trial. At the time of trial, the Court will hear live testimony from both parties, their fact witnesses, and their expert witnesses. At that time, either or both attorneys may have to submit many documents to the Court called exhibits.
Trial is stressful, expensive, risky, and usually unpleasant. However, if the parties cannot reach a reasonable settlement, they will have no choice. A lawyer cannot predict the outcome of a trial because every case is different. A judge - a stranger who might possibly have a viewpoint, temperament, and values very different from the parties' - will dictate to them how they will divide their income and assets, when each will see the children, the amount of input each will have regarding decisions that affect the children, and who will be responsible to pay the counsel fees and expert fees associated with the divorce litigation.
Even a full trial may not end a divorce case. Either party may file an appeal to a higher Court.
12. Alternative Dispute Resolution
There are other methods of resolving a divorce case. One of these methods is called Alternative Dispute Resolution. It includes Mediation and Arbitration. A party should consult with his or her attorney to decide if these methods are right for the party's particular matter.