The Divorce Process
Below are the general steps involved in the New Jersey divorce process. Each divorce will begin with filing the Complaint for Divorce and end with a Final Judgment of Divorce, but depending on individual circumstances, parties may not go through every step, as the parties have the option and opportunity to resolve their matter without Court intervention during the entire divorce process:
Filing the Complaint for Divorce: One spouse (the plaintiff) files a Complaint for Divorce in the Superior Court – Family Part of the county where they reside. One party must be a resident of New Jersey for at least twelve months prior. The only exception to this one-year residency requirement is if the plaintiff has filed for divorce based on adultery.
New Jersey is a no-fault state. In other words, aside from certain egregious exceptions ,the financial aspect of the divorce will not be affected due to various reasons for divorce, such as extreme cruelty or adultery. Under Irreconcilable differences, a party must prove differences between the parties have arisen, these differences have been occurring for at least six months prior to filing the divorce, the differences have broken down the relationship, and there is no reasonable prospect of reconciliation. The irreconcilable differences basis for divorce does not require that one spouse make allegations or accusations against the other. The court will generally not challenge the claim.
The Complaint will also state the reliefs one party is seeking from the termination of the marital bond, such as, equitable distribution of property, support (spousal/child) and custody/parenting time. A spouse may also elect to change their married name.
Serving the Complaint: Once the complaint has been filed, the party will receive a docket number from the court. This is a unique number that identifies the type of complaint, the county in which it was filed and the court year. The plaintiff or plaintiff’s attorney will then serve it on the other spouse (the defendant). Once served, the defendant has 35 days to respond.
Defendant’s Response: The defendant may respond in a variety of ways, or not respond at all. The defendant may file an Answer to the Complaint and may also file a Counterclaim if they have any claims against the plaintiff. Since the divorce will resolve all issues between the parties which ever existed, it is important to raise all issues in the claim or the counterclaim or they will be barred from being raised later. If the defendant does not answer within 35 days, the plaintiff may seek to have a divorce entered by default.
Mandatory Parent Education Program: Parents must attend a Parents’ Education Program (“PEP”) in all divorce cases in which custody, parenting time, or child support is raised as an issue in the complaint or answer/counterclaim. The Program is designed to help them understand the impact of divorce on children and how to manage co-parenting effectively. This is presented by Court staff and has most recently continued to be done via Zoom. If a party fails to attend PEP, their pleadings (Complaint or Counterclaim) may be dismissed by the Court.
Custody Mediation: If the matter is referred to Custody Mediation, the parties will be scheduled for a free mediation with Court provided custody mediators. This event is usually attended by the parties only, without their attorneys present. Parties should speak with their attorneys to prepare for the Custody Mediation. This usually occurs before future court events such as Early Settlement Panel and closer to the beginning of the case.
Case Management Conference: After the pleadings (i.e. Complaint and Answer/Counterclaim) are filed, court schedules a Case Management Conference (“CMO”) to set deadlines for the discovery process and other pre-trial matters. Counsel, generally without the parties present, may appear at this conference to discuss the issues in the matter and the complexity of the case and the scheduling of required events. The court will place the timing of discovery on an expedited (less than 90 days), standard (less than 120 days), priority (variable) or complex (variable) track. Deadlines will be set for the completion and filing of Case Information Statements, service of discovery, responses to discovery, depositions, expert reports and valuation (if applicable in the matter). The Case Management Order may be issued based on a conference before the judge, a call, or the consent of the attorneys. If there are unemancipated children, the Order will also address whether parenting time and custody mediation will be scheduled or if a Parenting Time Plan is to be filed by each party. Once filed with the Court, the Court will fill in the dates for Early Settlement Panel, Intensive Settlement Conference and Trial. Additional case management conferences may be needed if deadlines are missed or unexpected complexity develops.
Case Information Statement (“CIS”): Both parties exchange detailed financial disclosure forms called Case Information Statements, which list all assets, liabilities, income, and expenses. This is required to be exchanged within 20 days from when the defendant files an Answer, although generally a date is set in the CMO for the exchange of CISs. The Case Information Statement is crucial as neither the attorneys nor the Court will have personal information about the parties’ financial circumstances. It is imperative to be accurate and disclose all financial information, as it can affect issues regarding alimony, equitable distribution and child support.
Discovery: Additional discovery methods include Interrogatories and Notices to Produce documents propounded to the other party. The time for submitting the requests and the amount of time given for a response will be specified in the Case Management Order. Interrogatories are written responses to written questions. A Notice to Produce (“NTP”) requires a litigant to produce a volume of documents, as requested in the NTP. In addition, litigants may choose to take depositions of the parties or other witnesses and experts. Litigants may also subpoena various financial institutions or employers for additional information. Deposition deadlines will be scheduled by the Case Management Order. Complex issues that may require expert testimony may be done using joint experts or ones retained by each party who, in turn, may hire rebuttal experts. The deadlines for these reports are also set forth in the Case Management Order.
Matrimonial Early Settlement Panel (“ESP”): If the case is not resolved by the time of the Early Settlement Panel, the parties will be required to attend this event. ESP will typically be scheduled after discovery so that the parties have an opportunity to exchange relevant information. This is an opportunity for the litigants and their counsel to appear before volunteer attorneys in court, present their case and receive a recommendation for settlement. The panelists are volunteer matrimonial attorneys, who usually practice in the county where they volunteer. Based on their experience and knowledge of the judge, they will issue a non-binding and confidential recommendation for settlement. Each party’s counsel will prepare a statement for the panel outlining the issues and the party’s position.
POST-ESP Mandatory Economic Mediation: If the case does not settle, the parties are required to attend Post-ESP mandatory economic mediation. The court appointed mediator will provide 2 free hours of their time. Thereafter the parties must pay the mediator’s hourly rate if services continue. The cost is typically shared equally. The statement prepared for the Early Settlement Panel may be submitted to the Mediator.
Intensive Settlement Conference: If ESP and economic mediation are not successful, an Intensive Settlement Conference will be held. The parties and their counsel are brought to court for as long as the entire day to negotiate settlement. Often the judge will make him/herself available to confer or speak with litigants or their counsel to provide assistance. This may help parties resolve their divorce on their own. However, the judge will not issue any rulings or findings at this stage because facts and evidence have not yet been presented in full to the court.
Trial: If the parties cannot resolve their divorce matter at the ISC, the case proceeds to trial where a judge will make decisions on all the unresolved issues. If some issues in dispute have been agreed to, the trial can be limited to only those issues still in dispute. Preparation for trial can be very time-consuming and expensive, but it will focus the parties’ attention on what is really important. Sometimes cases heading for trial will settle just before it starts. Trial preparation is generally done concurrently with settlement efforts.
At trial, both parties have the right to present evidence and call witnesses. There are two types of witnesses: fact witnesses and expert witnesses. Fact witnesses testify to relevant information based on their knowledge or observation. Expert witnesses, who have investigated one or more issues will testify as to their qualified opinions. This will be presented to support arguments related to asset values and division, earning potential, spousal support, child support and custody/parenting time. After all evidence is presented, the final decision will be made by the judge on all unresolved issues. Throughout the divorce process, the parties will be encouraged to settle because they will walk away with certainty about the result. Although a party might do better at trial than in settlement, the result could also be worse.
Final Judgment: Once all issues have been resolved, either through settlement or trial, the court issues a Final Judgment of Divorce, which legally ends the marriage and settles all terms of settlement.
Pendente lite (i.e. pending the litigation) motion practice: Pendente lite motions to address temporary resolution of issues like custody, parenting time, support and other necessary issues, may be filed at any time during the course of the litigation pursuant to the court’s normal motion calendar. Any decisions made pendente lite will terminate at the conclusion of settlement or trial unless specifically retained. Pendente lite orders are typically put in place to allow the parties to continue to focus on settlement effort or otherwise move forward in the above required procedural events.
Alternative Dispute Resolutions: During the divorce process, the parties can elect to attend engage in settlement negotiations and private mediation to attempt to resolve the issues in the divorce, including child custody, alimony, child support spousal support, and division of assets and debts. Private mediation is separate from the mandatory mediation ordered by the court and may be started at any time during the process under terms agreed to between the parties. The parties can also agree to attend binding or non-binding arbitration, which is similar to that of a trial except a private neutral third party called the arbitrator will make final and binding decisions on the parties’ outstanding issues. Parties may choose to take their divorce case out of the court’s system for a few reasons, including but not limited to: 1) the process can be less expensive; 2) the timing of the divorce process may be relaxed; 3) binding arbitrations are private proceedings, which can shield sensitive information from the public; etc.
Contact Maleski, Eisenhut & Zielinski, LLC to discuss your divorce options.