Wednesday, April 07, 2010

Steps to obtaining a divorce in New Jersey: a comprehensive overview

Once you have decided to dissolve your marriage, understanding the divorce process from beginning to end will help you prepare for the time ahead. Just as you would approach a car trip by reading the directions and planning your route, you should approach divorce proceedings with an understanding of what steps you will have to complete. The lawyer that you retain to represent you will be assisting you with every stage of the divorce. However, it is best to know what to expect so that the process can move smoothly and you are prepared for the ebb and flow of divorce procedure.


First of all, be kind to yourself. Divorce can be hell. The ending of a marriage can be traumatic. Take deep breaths. Relax. You will get through this.




What does New Jersey require for a divorce?

First of all, in order to divorce in New Jersey, either you or your spouse, or both of you, must have lived in New Jersey for twelve (12) consecutive months prior to filing the divorce complaint. In order to begin the divorce proceedings, you must have grounds for divorce. That is, you must have a reason to divorce your spouse. New Jersey allows for two types of divorces: 1) no-fault and 2) fault. Your unique situation will determine the best way for you to demonstrate grounds for divorce, however many couples find it easier to aim for no-fault grounds versus trying to establish a fault divorce.



• No-Fault Divorce: There are two options for no-fault divorce with different requirements for each:

1. No-Fault Divorce based on separation:

o You or your spouse must have lived separately for at least 18 consecutive months before the filing of the divorce complaint.

o There cannot be a reasonable prospect of reconciliation.


2. No-fault divorce based on irreconcilable differences:

o You or your spouse must have experienced irreconcilable differences for a period of 6 months-and these differences make it clear that the marriage should be dissolved.

o There cannot be a reasonable prospect of reconciliation.


• Fault Divorce: This type of divorce often requires proof and testimony that can be draining on the parties. If you are not certain that you qualify for a fault based divorce you may be better off filing for a no-fault divorce to keep the difficulty of the emotions and hard feelings in check. Some of the grounds for fault based divorce include:



o Desertion

o Extreme Cruelty

o Adultery



Step 1: Gather information and records.

You are going to need certain documents for your lawyer and the court. It is a good idea to start gathering these early as some can be a little more time consuming to obtain than others. Here is a list of information as well as documents that you would need to acquire:

• General Information and Documents:

o Names and addresses of you and your spouse

o The date of your marriage and whether it was a civil or religious ceremony—may need a copy of your marriage certificate.

o Confirmation that you or your spouse have resided in NJ for at least 12 months

o Information for the grounds you are seeking:

o No-Fault Separation: proof that you were living separately for 18 months

o No-Fault Irreconcilable Differences: you have believed for at least six months that your marriage cannot be repaired

o Fault: information on your spouse’s behavior: cruelty, abandonment, etc.

o Children’s names, birthdates, and social security numbers

• Court Orders, if any, between you and your spouse that relate to the marriage. Be sure to get the docket numbers for any court actions. Examples would include:

o Child Support Orders and Custody/Visitation Orders

o Adoption of Children

o Name Change Orders

o Domestic Violence Restraining Orders-you should also gather supporting documents including police or hospital reports.

• Financial Information-These documents are what you need to demonstrate income, investments, assets, property, debts and expenses.

Before beginning to gather these documents it is a good idea to sit down and write a list of any sources of income, accounts, investments, expensive property and expenses. Once your list is completed you can then begin to collect proof of the items of your list. Your attorney will help you with the question of what will be included in the marital estate.

You will want to include items that are in your name, your spouse’s name or both of your names.

This would include:

o tax returns

o pay stubs or other proof of income (Social Security Income, Social Security Disability, welfare, rental assistance, child support, etc)

o list of banks accounts for you and your spouse and bank statements

o stock, bonds, IRAs, and other similar assets

o leases or deeds to real property

o automobile titles

o automobile loans

o debt documentation such as credit card statements and loans

o a list of monthly expenses

o copies of monthly bills

o mortgage documents

o insurance policies (for example health, dental, life, automobile and homeowners)

o pension plans and retirement accounts

o receipts for bills for personal injury or property damage caused by your spouse


Tip: Divorce can be paperwork intensive -- gather your documents and keep them organized.



Step 2: Decide what is most important for you to get from the divorce:

Divorce will almost certainly involve a negotiation between you and your lawyer and your spouse and their lawyer. It is wise to go into the divorce process with a good understanding of what will be most important to you and also what you think would be most important to your spouse. Think about what points you are willing to compromise on and what points are absolutely necessary to you. Some topics that you are likely to encounter during your divorce include:

• Alimony/Spousal Support (do you need or do you think your spouse will ask for continued support?)

• Division of real property (land, homes, etc)

• Division of personal property (are there items that you feel very strongly about keeping?)

• Division of debts

• Taking back your former name or changing your name

• Insurance policies and premiums

• Money damages for personal injury or property damage

• Child Custody and Parental Visitation

• Child Support



Step 3: Creating and filing your complaint:

Your complaint is what is going to notify the court that you are initiating a divorce proceeding. This will also be delivered to your spouse and will alert them to the divorce action, if they are not already aware. At this point you will need to decide what types of relief you are going to request. Keep in mind that the court will look at a variety of factors in rewarding relief and that simply requesting something will not guarantee it will happen.

• File complaint (which includes the basic facts of the parties) with the court along with the following documents:

o Certification of Verification and Non-Collusion: this states that you are filing for divorce in good faith and that you are being truthful

o Certificate of Insurance: this lists all the insurance that you, your spouse or your minor children have

o Certification of Notification of Complementary Dispute Resolution: this states that you have read the required Explanation of Dispute Resolution Alternatives

o Family Part Case Information Statement: this is very a detailed form that is required if there is any dispute as to alimony, custody, support, or division of the property/debt

o Confidential Litigant Information Sheet: this is a confidential document that you must complete if you are requesting alimony or child support


• Serve the complaint with a Summons and Attached Proof of Service to your spouse.

 Your spouse then has 35 days to file an answer and/or counterclaim to your complaint or they can file an appearance if they are not contesting your complaint.



Step 4: Mediation in an attempt to reach a settlement that is agreeable to both parties:

New Jersey strongly encourages mediation and settlement of divorces and you will be expected to take steps towards a settlement outside of court before you will be allowed to go to trial. Settlement outside of court can save the parties time, money and emotions and move the process along more quickly.





• If you will need support during the long process of the divorce you can request Alimony Pendente Lite which is temporary support. Of course, if you have children child support will be an issue.

• Case Management Conference: this is when you will meet with your spouse (and your lawyers) and the judge to discuss what is going to be disputed, discovery between the parties, trial dates, etc. This is a way for the court to make sure the divorce is on track.

• Discovery: this is when both sides will request information from each other. This would include information on income and property.

• Parents Education Program: this is a program for parents where they will be informed of their responsibilities and how the court handles custody and visitation

o You will also be required to file a Custody and Parenting Time/Visitation Program where you will have to explain what custody you are seeking and what schedule you would like to propose for visitation.





• Matrimonial Early Settlement Programs (MESPs): this is a mediation conference where volunteer lawyers help you and your spouse resolve issues with the goal of reaching a settlement. If a settlement cannot be reached you may be sent to another mediation session: Post-MESP or Post-MESP Complementary Dispute Resolution. Another option would be for you and your spouse to be sent to trial.

• If you are unable to reach an agreement through any of the mediation sessions or negotiations you will move to trial.




Note: not every divorce ends up in court. Even if you must go to court, many issues are settled.




How is the court going to determine what I am entitled to and what my spouse is entitled to?

The court tries to be as fair as possible in making decisions on disputed issues in a divorce. There is often a wide variety of factors that are considered and it is difficult to determine exactly how the court will rule. Some issues that are often disputed and how they can be resolved are:

• Alimony: The court will look at a list of factors in determining alimony including parties’ needs, length of marriage, standard of living, earning capabilities, parental responsibilities, etc. Alimony can be permanent, limited duration, rehabilitative or reimbursement:

o Permanent: often for long term marriages this is intended to help the lower income spouse maintain their current lifestyle

o Limited Duration: has an end date

o Rehabilitative: this is short term and gives support until the lower income spouse is able to take steps to secure more income for themselves

o Reimbursement: this is sometimes seen in situations where one spouse supported the other in educational or professional gains above and beyond the support expected in a marriage relationship

• Custody arrangements of children from the marriage: Decisions are to be in the child’s best interest and factors that are considered include the relationship with the parent and child, child’s needs and preference, education, siblings, etc. Custody Arrangements can be in the following forms:

o Joint Physical Custody: shared

o Primary Physical Custody: the child is mostly with one parent often with visitation from the other parent. This also called the parent of primary residence.

o Joint Legal Custody: both parents share important decisions regarding the child

o Primary Legal Custody: one parent makes the important decisions



• Child Support: This is financial support paid from the non-custodial parent to the custodial parent and there are detailed rules in NJ on how this will be calculated. You should discuss your specific situation with your lawyer.

• Division of Property:

o First it will be determined what is marital property and what belongs to you, or your spouse, that is not part of the marital estate. The court will need the values of the property.

o Keep in mind this would include things like pension and retirement accounts, health insurance, and personal injury awards.

o Next it will be determined what is marital debt, and what debt belongs to you, or your spouse, individually.

o The court will then (while taking into consideration a variety of factors including length of marriage, income of each spouse, the contribution of one spouse to the education or professional training of another, asset values and debts, etc) try to divide up the property and debts in the fairest way.



What happens if the terms of the settlement or the decisions made by the court are not upheld? What if I am unhappy with the result?

• The court is generally unwilling, after the divorce is complete, to revisit issues of property and debt distribution absent fraud or misconduct.


• The court is generally willing to revisit issues of alimony, custody, and child support if there are changed circumstances.

o If the circumstances and factors that influenced a court’s decision in alimony, custody and/or child support are drastically changed, the court may be willing to alter the terms of its decision. You would have to file a Petition for Modification with the court and be prepared to show a good cause for the change. Some examples:



 the party receiving support has an increase in salary or the party paying support is no longer able to work

 the child custody arrangement is no longer in the best interest of the child



• Unfortunately, all parties do not follow the obligations placed on them by the court. You may have to file a Motion to Enforce Litigants’ Rights in order to force the other party to fulfill their responsibilities.



So, what next?
The complexity, expense and emotional toll of a divorce depends on a variety of factors. If you are contemplating divorce, your first step should be an initial consultation with an attorney so you can learn how the law and procedures apply to your individual situation.

If you are interested in setting up a consultation with my office, please click here.



This blog article was written by Elizabeth Early.  Elizabeth is a second year law student at Temple University Beasley School of Law and is currently gaining experience at my office.  She received her undergraduate degree from Pennsylvania State University and grew up in the Poconos.  You can email Elizabeth directly at ecearly@gmail.com.


5 comments:

The Independent Rage said...

How does the Rule in Dumpor's Case play into all this?

Athrunxala said...
This comment has been removed by a blog administrator.
DivorceLawyers said...

Every steps about divorce process clearly explain. Thanks for the very nice post.

scott davidson said...
This comment has been removed by a blog administrator.
T Charles said...

Nice explanation! Divorce is really traumatic, so a spouse should know how to deal with its impact.