What to Expect During Your Divorce
The purpose of this brochure is to provide you with a roadmap of what you can expect during your divorce litigation, the mechanics of the proceedings, and to set forth what you can expect of our law firm and what our law firm will expect of you. It is by no means an exhaustive recitation of divorce law, but should help answer some of the general questions that you may have.
PROCEDURE AND CHRONOLOGY
Everyone’s individual case varies and for any number of reasons, including court congestion, your case may take a long time to conclude. What I would suggest is to mentally prepare yourself for a full year before your case is resolved. Of course, this firm will make every effort to resolve your matter sooner. During the course of the litigation, individuals tend to forget events that occurred early on that may be relevant at trial or during settlement negotiations, as such, it is important that you keep some sort of diary to jot down important or relevant events as soon as possible after they occur.
In this state there must at some point be a hearing, at which it is possible that at least one witness besides you may have to testify about the allegations. As such, if there are any witnesses you know have relevant information, please ask that person to write out their anticipated testimony, while the incident(s) is fresh in his/her mind. The statement should be in the witnesses own words, without any assistance from you or anyone else. Please provide this office with all statements at your earliest convenience.
You will also be asked to provide this office with certain other relevant information including a confidential client questionnaire from which we gain necessary facts for preparing and filing legal documents, a complaint if you are suing or an answer and/or counterclaim if you have been sued, with the Court.
THE COMPLAINT
Marriage, divorce and related family dissolution matters are governed by state law. The legislature established the grounds for divorce by statute. The grounds for divorce that exist in New Jersey may differ from those that exist in other states. For example, many others states still require that there be alleged and proved an act of “fault” or that the parties have lived separate for a certain length of time. In New Jersey a Complaint for Divorce must allege one of the following grounds, and without one of these the Court is not authorized to grant a divorce:
1. Adultery
2. Desertion (12 or more months)
3. Extreme Cruelty
4. No Fault Separation (living separate and apart for 18 months in different homes)
5. Voluntarily Induced Addiction or Habitual Drug Addiction or Drunkenness
6. Institutionalization for Mental Illness (for a period of 24 or more consecutive months)
7. Imprisonment (for 18 or more consecutive months)
8. Deviant Sexual Conduct
9. Irreconcilable differences (for a period of 6 months)
As you will notice, New Jersey permits a no fault divorce based on either an eighteen (18) month separation or “irreconcilable differences”. Whatever ground for divorce a party relies on in his or her Complaint, that allegation will have to be proven. The exact type and amount of evidence necessary to prove the allegations contained in the Complaint are established by prior case law.
THE ANSWER
After the initial “Complaint” has been filed with the Court, then it must be served on your spouse. Your spouse may accept service at the clerk’s office to expedite the proceeding and avoid being served at work or home, or have an attorney accept service on his/her behalf. After the Complaint is served on the other party, by statute, the other party must file an Answer and/or Counterclaim within 35 days if he/she intends to do so. An Answer is just that, an answer to the allegations contained in the Complaint. The Counterclaim is basically the defendant’s “complaint”, and is generally filed simultaneously with the Answer. The defendant in a divorce litigation may also file an Appearance, when he/she is not contesting the allegations or grounds for divorce contained in the Complaint.
THE CASE INFORMATION STATEMENT
Generally, a Case Information Statement, also known as a “CIS”, must be filed and served on the other party in all contested family actions where there are any issues related to custody, support, alimony or equitable distribution. The CIS must be filed with the clerk of the Court within twenty (20) days after the Answer or Appearance has been filed. If either party fails to file a CIS in the time prescribed, the Court may dismiss that party’s pleadings.
The purpose of the CIS is to identify all assets and liabilities (whether or not subject to equitable distribution) of the parties. This financial statement aids the Court in making a determination with regard to what level of support may be necessary for a supported spouse. It also provides the parties with a financial statement from which to begin discussions with regard to equitable distribution issues.
Each CIS should include the parties’ tax returns, their last three (3) pay stubs, and retirement statements. The more comprehensively a parties’ CIS is, the easier it will be for the Court, attorneys and Mandatory Early Settlement Panel to help the parties settle their case.
WHAT’S NEXT
After the other party has filed a responsive pleading, the Court will generally schedule your matter for a Case Management Conference, during which the two attorneys will work with the judge assigned to your case to prepare a scheduling order. At that time, you will be given a date to appear before a Mandatory Early Settlement Panel (MESP). The MESP is comprised of two attorneys appointed by the court to arbitrate divorce cases on a volunteer basis. They hear facts of the case, listen to the attorneys for the litigants advocate their positions, and then, after deliberation, render their opinions to the litigants. Their opinion is non-binding, however if you and your spouse agree, you will be able to conclude your divorce at that time. If either you or your spouse disagree and are not able to settle your case, then the matter will be scheduled for a second MESP, a pre-trial conference or a trial date.
During a trial in your case, you will be afforded the opportunity to introduce witnesses and evidence in an effort to prove your position. The trial process can take several months due to the Court’s heavy calendar. After the trial, it can also take a number of weeks for the final decree to be signed by the Judge and to receive a final copy from the Court.
Resolving issues concerning your divorce can be costly and emotionally difficult. While only a judge can actually grant a divorce, order the division of your property and debts, and order support; many if not all of these issues can be resolved by consent and incorporated into a Final Judgment of Divorce. There exist alternative dispute resolution methods by which to resolve your case without the necessity of a public trial and expense associated with a full trial on all issues. Enclosed herewith is a short handout written by the Court outlining those alternatives, for your consideration.
Our law firm is here to expeditiously handle your case and answer your legal questions, and we hope to do so in a cost effective manner. If your desires or circumstances change, we of course cannot answer for any extra delay or expense that this may cause. We represent you and stand ready to advise you and to do what you instruct us to do, as long as it is within reason. We are always pleased to hear any good news of reconciliation, and in the event that you decide at any time to withdraw from any litigation which is before the Court or in the process of being prepared, please notify us at once so that we can prevent the legal process from going any further. Otherwise, we will prepare documents which you must read and sign for filing with the Court and then we will notify you of the trial date as soon as we know it – usually several weeks beforehand.
SEPARATION AGREEMENTS (PROPERTY SETTLEMENT)
Again, many of the matters incidental to a divorce can be more expeditiously disposed of if they are settled between the parties and not contested in Court. The matters that are agreed upon can be presented to the Court in a contract signed by husband and wife, called a Property Settlement and Support Agreement. It can deal with property division, support money, custody and visitation, insurance and many other subjects. If the Court accepts the agreement, it will adopt it as part of the final divorce decree and give the agreement the strength of a Court order, enforceable by contempt proceedings.
SPECIFICS
Property Matters: Property ownership and division of assets of a marriage are usually decided at the final hearing. If the respective parties to a divorce can agree on division of properties, both real and personal, then this agreement may be incorporated into a property settlement agreement to be presented to the Court for incorporation in the divorce judgment.
Support of Spouse/Children: While a case is pending, one spouse may be liable for the support of the other spouse and/or certain children. If the parties cannot agree upon an amount, then the Court will determine this amount. The support amount is based upon earnings of the respective spouses and needs of the support recipient; and setting spousal support is not an exact science. To help determine the amount of support, on the other hand, the Court utilizes child support guidelines. “The premise of these guidelines is that (1) child support is a continuous duty of both parents, (2) children are entitled to share in the current income of both parents, and (3) children should not be the economic victims of divorce or out-of-wedlock birth.” R.5:6A, Appendix IX-A1. The guidelines attempt to simulate the net income spent on a child in an intact family. Both parties’ incomes, or imputed incomes, are inputted into the guideline, along with any deductions to determine the total amount of child support. This office has a guideline program that it utilizes as a guide for what the Court will Order. No office has the same program as the Court’s, and as such the numbers can differ.
Child Custody: Custody and visitation schedules can also be included in a settlement agreement. If the parties cannot settle this issue at the outset, then the Court can schedule the parties to parenting time mediation. If mediation is unsuccessful, then it is often necessary to hire custody experts who will offer their opinion, by way of a Custody Evaluation or Report.
Retirement Benefits: Distributing retirement benefits, whether they are in pay status or not, can also be included in a settlement agreement. The way it can be distributed will depend on the type of benefit.
Woman’s Name: A married woman’s name can be changed by the Court in the divorce decree, and she should specifically ask for this relief at the time of the filing of the complaint if she desires it.
Miscellaneous: Everyone’s case is unique and will contain certain issues that may need to be resolved during the course of settlement. Rest assured that virtually every issue, within reason, can be included in a property settlement agreement, so long as the other party agrees.
INTERIM COERCIVE AND EMERGENCY RELIEF
Either spouse can obtain immediate financial support, immediate temporary custody, and other forms of relief during the pendency of the litigation, as soon as a divorce complaint is filed. For example, in an appropriate case, one spouse can be temporarily barred from certain premises or barred from dissipating marital assets. If you believe your present circumstances warrant any such special relief during the pendency of the litigation process, please mention it to your counsel immediately. Please be mindful however, if you believe you may be in danger, you should not wait to talk to your attorney, but should not hesitate to call 911 or the appropriate authorities. Only after you are out of danger, then you should advise your attorney of what transpired.
PROCEDURE AND CHRONOLOGY
Everyone’s individual case varies and for any number of reasons, including court congestion, your case may take a long time to conclude. What I would suggest is to mentally prepare yourself for a full year before your case is resolved. Of course, this firm will make every effort to resolve your matter sooner. During the course of the litigation, individuals tend to forget events that occurred early on that may be relevant at trial or during settlement negotiations, as such, it is important that you keep some sort of diary to jot down important or relevant events as soon as possible after they occur.
In this state there must at some point be a hearing, at which it is possible that at least one witness besides you may have to testify about the allegations. As such, if there are any witnesses you know have relevant information, please ask that person to write out their anticipated testimony, while the incident(s) is fresh in his/her mind. The statement should be in the witnesses own words, without any assistance from you or anyone else. Please provide this office with all statements at your earliest convenience.
You will also be asked to provide this office with certain other relevant information including a confidential client questionnaire from which we gain necessary facts for preparing and filing legal documents, a complaint if you are suing or an answer and/or counterclaim if you have been sued, with the Court.
THE COMPLAINT
Marriage, divorce and related family dissolution matters are governed by state law. The legislature established the grounds for divorce by statute. The grounds for divorce that exist in New Jersey may differ from those that exist in other states. For example, many others states still require that there be alleged and proved an act of “fault” or that the parties have lived separate for a certain length of time. In New Jersey a Complaint for Divorce must allege one of the following grounds, and without one of these the Court is not authorized to grant a divorce:
1. Adultery
2. Desertion (12 or more months)
3. Extreme Cruelty
4. No Fault Separation (living separate and apart for 18 months in different homes)
5. Voluntarily Induced Addiction or Habitual Drug Addiction or Drunkenness
6. Institutionalization for Mental Illness (for a period of 24 or more consecutive months)
7. Imprisonment (for 18 or more consecutive months)
8. Deviant Sexual Conduct
9. Irreconcilable differences (for a period of 6 months)
As you will notice, New Jersey permits a no fault divorce based on either an eighteen (18) month separation or “irreconcilable differences”. Whatever ground for divorce a party relies on in his or her Complaint, that allegation will have to be proven. The exact type and amount of evidence necessary to prove the allegations contained in the Complaint are established by prior case law.
THE ANSWER
After the initial “Complaint” has been filed with the Court, then it must be served on your spouse. Your spouse may accept service at the clerk’s office to expedite the proceeding and avoid being served at work or home, or have an attorney accept service on his/her behalf. After the Complaint is served on the other party, by statute, the other party must file an Answer and/or Counterclaim within 35 days if he/she intends to do so. An Answer is just that, an answer to the allegations contained in the Complaint. The Counterclaim is basically the defendant’s “complaint”, and is generally filed simultaneously with the Answer. The defendant in a divorce litigation may also file an Appearance, when he/she is not contesting the allegations or grounds for divorce contained in the Complaint.
THE CASE INFORMATION STATEMENT
Generally, a Case Information Statement, also known as a “CIS”, must be filed and served on the other party in all contested family actions where there are any issues related to custody, support, alimony or equitable distribution. The CIS must be filed with the clerk of the Court within twenty (20) days after the Answer or Appearance has been filed. If either party fails to file a CIS in the time prescribed, the Court may dismiss that party’s pleadings.
The purpose of the CIS is to identify all assets and liabilities (whether or not subject to equitable distribution) of the parties. This financial statement aids the Court in making a determination with regard to what level of support may be necessary for a supported spouse. It also provides the parties with a financial statement from which to begin discussions with regard to equitable distribution issues.
Each CIS should include the parties’ tax returns, their last three (3) pay stubs, and retirement statements. The more comprehensively a parties’ CIS is, the easier it will be for the Court, attorneys and Mandatory Early Settlement Panel to help the parties settle their case.
WHAT’S NEXT
After the other party has filed a responsive pleading, the Court will generally schedule your matter for a Case Management Conference, during which the two attorneys will work with the judge assigned to your case to prepare a scheduling order. At that time, you will be given a date to appear before a Mandatory Early Settlement Panel (MESP). The MESP is comprised of two attorneys appointed by the court to arbitrate divorce cases on a volunteer basis. They hear facts of the case, listen to the attorneys for the litigants advocate their positions, and then, after deliberation, render their opinions to the litigants. Their opinion is non-binding, however if you and your spouse agree, you will be able to conclude your divorce at that time. If either you or your spouse disagree and are not able to settle your case, then the matter will be scheduled for a second MESP, a pre-trial conference or a trial date.
During a trial in your case, you will be afforded the opportunity to introduce witnesses and evidence in an effort to prove your position. The trial process can take several months due to the Court’s heavy calendar. After the trial, it can also take a number of weeks for the final decree to be signed by the Judge and to receive a final copy from the Court.
Resolving issues concerning your divorce can be costly and emotionally difficult. While only a judge can actually grant a divorce, order the division of your property and debts, and order support; many if not all of these issues can be resolved by consent and incorporated into a Final Judgment of Divorce. There exist alternative dispute resolution methods by which to resolve your case without the necessity of a public trial and expense associated with a full trial on all issues. Enclosed herewith is a short handout written by the Court outlining those alternatives, for your consideration.
Our law firm is here to expeditiously handle your case and answer your legal questions, and we hope to do so in a cost effective manner. If your desires or circumstances change, we of course cannot answer for any extra delay or expense that this may cause. We represent you and stand ready to advise you and to do what you instruct us to do, as long as it is within reason. We are always pleased to hear any good news of reconciliation, and in the event that you decide at any time to withdraw from any litigation which is before the Court or in the process of being prepared, please notify us at once so that we can prevent the legal process from going any further. Otherwise, we will prepare documents which you must read and sign for filing with the Court and then we will notify you of the trial date as soon as we know it – usually several weeks beforehand.
SEPARATION AGREEMENTS (PROPERTY SETTLEMENT)
Again, many of the matters incidental to a divorce can be more expeditiously disposed of if they are settled between the parties and not contested in Court. The matters that are agreed upon can be presented to the Court in a contract signed by husband and wife, called a Property Settlement and Support Agreement. It can deal with property division, support money, custody and visitation, insurance and many other subjects. If the Court accepts the agreement, it will adopt it as part of the final divorce decree and give the agreement the strength of a Court order, enforceable by contempt proceedings.
SPECIFICS
Property Matters: Property ownership and division of assets of a marriage are usually decided at the final hearing. If the respective parties to a divorce can agree on division of properties, both real and personal, then this agreement may be incorporated into a property settlement agreement to be presented to the Court for incorporation in the divorce judgment.
Support of Spouse/Children: While a case is pending, one spouse may be liable for the support of the other spouse and/or certain children. If the parties cannot agree upon an amount, then the Court will determine this amount. The support amount is based upon earnings of the respective spouses and needs of the support recipient; and setting spousal support is not an exact science. To help determine the amount of support, on the other hand, the Court utilizes child support guidelines. “The premise of these guidelines is that (1) child support is a continuous duty of both parents, (2) children are entitled to share in the current income of both parents, and (3) children should not be the economic victims of divorce or out-of-wedlock birth.” R.5:6A, Appendix IX-A1. The guidelines attempt to simulate the net income spent on a child in an intact family. Both parties’ incomes, or imputed incomes, are inputted into the guideline, along with any deductions to determine the total amount of child support. This office has a guideline program that it utilizes as a guide for what the Court will Order. No office has the same program as the Court’s, and as such the numbers can differ.
Child Custody: Custody and visitation schedules can also be included in a settlement agreement. If the parties cannot settle this issue at the outset, then the Court can schedule the parties to parenting time mediation. If mediation is unsuccessful, then it is often necessary to hire custody experts who will offer their opinion, by way of a Custody Evaluation or Report.
Retirement Benefits: Distributing retirement benefits, whether they are in pay status or not, can also be included in a settlement agreement. The way it can be distributed will depend on the type of benefit.
Woman’s Name: A married woman’s name can be changed by the Court in the divorce decree, and she should specifically ask for this relief at the time of the filing of the complaint if she desires it.
Miscellaneous: Everyone’s case is unique and will contain certain issues that may need to be resolved during the course of settlement. Rest assured that virtually every issue, within reason, can be included in a property settlement agreement, so long as the other party agrees.
INTERIM COERCIVE AND EMERGENCY RELIEF
Either spouse can obtain immediate financial support, immediate temporary custody, and other forms of relief during the pendency of the litigation, as soon as a divorce complaint is filed. For example, in an appropriate case, one spouse can be temporarily barred from certain premises or barred from dissipating marital assets. If you believe your present circumstances warrant any such special relief during the pendency of the litigation process, please mention it to your counsel immediately. Please be mindful however, if you believe you may be in danger, you should not wait to talk to your attorney, but should not hesitate to call 911 or the appropriate authorities. Only after you are out of danger, then you should advise your attorney of what transpired.