The decision to seek a divorce is often difficult and painful. There is uncertainty about your future and possibly your children’s futures, and you may likewise be uncertain about what the Family Court process actually entails with regard to getting a divorce. Described below is a very brief outline of the matrimonial litigation process:
The first step in the litigation process is the filing a Complaint for Divorce. The Complaint indicates which of the statutory grounds established by our New Jersey statute, N.J.S.A. 2A:34-2, the plaintiff is relying upon as grounds to obtain a divorce. For instance, a commonly used statutory ground for divorce is “irreconcileable differences”, based on irreconcileable differences between the parties which have caused the breakdown of the marriage for a period of six months and which make it appear that the marriage should be dissolved and that there is no reasonable prospect of reconciliation. There are other grounds for divorce, including but not limited to, eighteen months separation, adultery and extreme cruelty. The Complaint for Divorce will also include facts to establish that the court has jurisdiction over the matter and that the matter is venued in the appropriate county. Additionally, the nature of any relief sought in addition to dissolution of the marriage will be listed, such as alimony, child support, custody, equitable distribution of assets, counsel fees, or damages for any marital tort. After the court dockets the Complaint and it is served along with a Summons on the other spouse, that spouse must file an Answer admitting or denying the allegations in the Complaint, and may file a Counterclaim for Divorce if desired. If an Answer is not filed within thirty five days of service of the Complaint, then the plaintiff may seek a default judgment against the defaulting spouse.
2. The Case Information Statement
Among the mandatory disclosures that must be made, each matrimonial litigant seeking a divorce must file a Case Information Statement. This is a sworn document in which each litigant discloses his and her annual, weekly and year to date earned and unearned incomes, their marital and current budgets, their assets, and their debts. They must also attach their most recent tax return and their three most recent pay stubs, and any Child Support Guidelines worksheets.
3. Custody Mediation
If custody and/or parenting time are an issue, the parties will participate in custody mediation in the hopes of at a mutual agreement about the custodial and parenting time arrangements in the best interests of the children. The parties will try to resolve legal and physical custody of their children. Legal custody involves the legal authority and responsibility for making major decisions affecting the children, such as educational and medical decisions. Physical custody involves where the children are going to be living and when, and the parenting time that each parent is going to be spending with the children.
The Court will conduct a Case Management Conference and establish deadlines for discovery to be exchanged if the parties are seeking disclosures from the other. Discovery is conducted via the exchange of interrogatories and notices to produce documents, and in some cases, depositions may be sought. In addition, the Court will establish deadlines for any expert reports to be exchanged. In some but not all cases, experts may be needed, for instance, to value a business, appraise real estate, calculate marital lifestyle, trace hidden or missing assets, value a pension, or to make a make a custody recommendation.
If a litigant needs temporary relief from the court during the litigation, such as temporary support or interim parenting time, a “motion” is filed. A written Certification and Notice of Motion are filed outlining what specific relief is being requested with the facts supporting why the relief requested is warranted. The opposing spouse has an opportunity to respond in writing and request relief of his/her own as well. The judge may conduct oral argument in court depending on the issues raised and relief requested and will then issue an Order for interim relief.
6. Early Settlement Panel (ESP) and Economic Mediation
Throughout this process a settlement may be reached at any time. If, however, a settlement has not been reached after discovery has been answered and exchanged, the litigants participate in a matrimonial Early Settlement Panel At the Early Settlement Panel, experienced matrimonial attorneys volunteer their time to try to assist litigants in reaching a settlement by making a recommendation on how the case may be settled. Thereafter, the parties must participate in at least one session of economic mediation, which is a form of alternative dispute resolution. A mediator will attempt to assist the parties in coming up with their own consensual resolution. This aspect of the process is confidential as the judge is not told the substance of settlement discussions.
7. Final Judgment of Divorce
The goal of this entire process is the entry of a Final Judgment of Divorce, which permanently dissolves the marriage. A Final Judgment of Divorce will be entered either when the parties reach a settlement as to all issues, or after a trial and the Court renders a decision on any outstanding issues.
Fortunately, the majority of matrimonial cases are resolved by a consensual agreement between the parties. Typically, if a settlement is reached, a written settlement agreement is signed by the parties. The settlement agreement will be incorporated into the Final Judgment of Divorce at an “uncontested hearing” before the judge. The judge does not review the terms of the settlement agreement or make findings about its fairness. By entering into a settlement agreement and incorporating the terms of the settlement into a divorce judgment, the parties are agreeing to comply with the terms of the agreement and are waiving their right to a trial and having a judge decide their case. The judge will at the uncontested hearing take some brief testimony of the parties to ensure that they each have the capacity to enter into an agreement, that they understand the agreement, and that the agreement was not the product of duress or coercion.
If, however, the parties are not able to reach a settlement, the Court will conduct a trial. At a trial each party presents testimony, witnesses and evidence to the judge . In the family court, there is no jury. Some time after the trial is complete, the judge will render a written Opinion stating the judge’s findings of fact and conclusion of law, and a Final Judgment of Divorce will be entered dissolving the marriage.
Given what can at times be a daunting process, litigants may want to hire an attorney to guide them through this process. The law firm of James P. Yudes, A Professional Corporation has numerous experienced attorneys who can advise, guide and assist you.