In this blog post, I am going to review what I consider to be the eleven primary steps of divorce litigation. The focus of this post will be procedural, along with some tips and analysis of the law along the way.
Step 1: Is Divorce Really the Answer?
Some prospective clients walk into my office and are 100% certain their marriage is over. These prospective clients are ready to start the process of divorce.
Others prospective clients are uncertain whether they are ready for divorce or not. What they really desire is to be provided with an overview of their rights and obligations should they choose to divorce.
Finally, there are those prospective clients who do not desire a divorce but their partner does. Emotionally divorce may be the toughest for people in this position. It’s important to acknowledge just how wrapped up in emotion family law and divorce can be for both parties to a divorce. You might need to seek counseling. You may wish to try marriage counseling. As I indicated above, please reach out to me and I’ll provide you with referral to local marriage counselors and/or therapists.
The Baseline Question: Is Divorce Really the Answer?
Some rocky marriages truly are salvageable. As I am neither a psychologist nor a marriage therapist, it’s not for me to say whether a prospective client’s marriage is worth attempting to save or not. That is a most personal decision. But I often do recommend that parties (absent extenuating circumstances such as abuse) attempt marriage counseling prior to initiating a divorce. If nothing else, this process may assist the parties understand each other and the reasons why divorce may be necessary.
Before you commence a divorce proceeding, you should take some time to be sure that the chance of saving the marriage is slim or zero. Once you have settled that question, you can then begin with the divorce process full-steam ahead, and with a clear conscious as to your decisions and objectives.
In summation, before one starts the New Jersey divorce process, he or should ask: is divorce really the answer? If so, then they should move on to the Second Step: choosing an attorney.
Step 2: Choosing an Attorney
Once you have determined that a divorce is inevitable, the next step is finding an attorney. Although some people represent themselves “pro se”, many individuals in New Jersey retain a divorce attorney to help them through the divorce process and to help protect their rights.
When choosing an attorney, there are some basic considerations such as: is the attorney licensed to practice in New Jersey? Does the attorney’s practice emphasize family law? And is the attorney local? Price is another important consideration that may limit the options available to potential clients. There is somewhat of a wide range of hourly rates and retainer amounts.
Some of the ways that clients find attorneys are through referrals, through the local bar associations, and through the internet.
Once these basic considerations have been met, the next step is to determine the right attorney. Personality plays a key role in divorce cases, and a good rapport between client and attorney may be crucial to maximizing results and limiting exposure. The attorney-client relationship will likely last months or even years from the first initial consultation until the ultimate divorce, so personality will be more important than one might think. I sometimes joke that I have been through dozens of divorces (on behalf of my clients). Despite the law largely remaining the same, each one has been defined not just by specific facts but by the personality of the party’s and the attorneys involved in the case.
Finally, competence and experience are always important when choosing any professional. Most people today prefer attorneys that work predominantly in the area of divorce work, or that limit their practice to only a few key areas of law.
Effective representation includes teaching and advising you about the law and divorce procedure, coordinating with you to design and implement effective litigation strategy, and outlining appropriate objective that maximize your leverage and limit exposure. A good attorney should be honest about what objectives are likely achievable and discuss both “best case” and “worst case” scenarios. After an initial consultation both attorney and client should understand their expectations for the case, their respective responsibilities and rights, and whether or not they are interested in working together.
Now, let’s move on to pleadings and the Case Information Statement
Step 3: Pleadings and the Case Information Statement
Although this has not always been the case, today, New Jersey Divorce pleadings are fairly straightforward. The point of divorce pleadings isn’t to prove your whole case, but rather to lay out all of the relevant causes of action. Absent claims of marital tort, extreme cruelty or the like, pleadings will be general in nature compared to most other types of litigation. New Jersey divorce pleadings are not required to be “technical.” All that is required is that basic facts be set forth demonstrating the underlying claims. Pleadings must also indicate the type(s) of relief requested. Under the relevant court rules, alternative forms of relief may be requested within the pleadings.
Perhaps the most important concept to remember regarding pleadings is this–New Jersey Court Rules understand that you’re at the very beginning of the litigation process. Therefore, the rules are generally lenient provided that a factual basis for the relief requested is provided. But it’s also important to remember to plead every cause of action from the underlying claim. If not, you could later be barred by “res judicata.” Remember that all pleadings–and particularly Complaints—are important and should be taken seriously.
Res Judicata and the Entire Controversy Doctrine
“Res Judicata” is one issue to consider when filing a pleading. Res Judicata is essentially the legal systems way of stating the following concept: “You must now bring every cause of action that stems from the underlying claim with your present pleadings, or you may be barred from retrying or seeking relief for the same issues at a later court appearance.”
In a way, this concept is similar (although only in theory) to the more common term criminal law term of “double jeopardy.” Accordingly if you wish to bring a marital tort along with your divorce, for instance, it’s important to bring that claim along with your original divorce pleadings.
Three Major Types of Pleadings in a New Jersey Divorce
• The Complaint (And Summons)
• The Answer/Counter-Claim
• The Answer to the Answer/Counterclaim
There are filing fees required by the Court in connection with the filing of a Complaint or an Answer to a Complaint. There are also specific time requirements. For instance, some manner of Answer or Appearance is required within 35 days of the date the Defendant receives the summons/complaint. Otherwise, the Court may commence the Default Judgment process against the Defendant.
The pleadings also set forth the cause of action. Some of the more popular divorce “causes of action” include irreconcilable differences, adultery, and extreme cruelty, amongst others, with irreconcilable differences being utilized a vast majority of the time as New Jersey is a “no-fault” state.
New Jersey Divorce Pleadings formally initiate the divorce litigation process. It is important that all of the valid court rules are followed, so that the case begins properly.
The Case Information Statement (“CIS”)
Case Information Statements are often referred to as the “Most Important” financial document in a New Jersey Family Law. This document is where each party will list assets, liabilities, personal information, and living expenses. If the case ever comes back in post-judgment matters, it will be (along with the Agreement) the most important document for purposes of proving changed circumstances.
By Court Rule, a “Case Information Statement” must be filed within twenty (20) days after the filing of an answer/counterclaim. After you retain our firm, we will provide you with specific Case Information Instructions and walk you through the Case Information process.
The purpose of the Case Information Statement is to notify the opposing counsel of your finances and other documentation, so that both parties are aware of where they stand. Both parties are required to fill out and file an accurate Case Information Statement as part of every contested New Jersey Divorce.
Now, let’s move on to Step 4 of the contested divorce process: Case Management Conferences.
Step 4: Case Management Conferences (“CMC’s”)
Shortly after the pleadings have been finalized, the case will likely be assigned its first Case Management Conference. The major purpose of the Case Management Conference is to create deadlines for discovery and other court processes. In most counties, if the parties can agree upon a Case Management Order, they will not be required to attend the first Case Management Conference. Around this same time if you have children you may receive a court notice for a “mandatory parenting class.” Don’t take this personally as it truly is mandatory for all contested matters of those involving children. Your spouse will also have to attend a separate class.
The Mandatory Parenting Class has absolutely no bearing on your case provided that you do not miss the parenting class. If you need to reschedule the class you can call the court or have your attorney send a letter requesting an adjournment. It is no reflection on you or your parenting skills but is simply a program created by court rule designed to provide resources to you and to encourage both parties to do their best to resolve their matters amicably and in their children’s best interests.
Now let’s move on to Step 5: Starting the Negotiation Process.
Step 5: Beginning Negotiations
My personal philosophy is that it is often beneficial to bring light to the contested issues that must be resolved. Even in the most complex or most highly contested divorces there are often many issues where the parties agree. The basic issues that need to be resolved in the average New Jersey Divorce Include (but are not limited to):
• Equitable Distribution (the distribution of marital property including retirement accounts, debts, businesses, and the marital home or other “real” property);
• Alimony;
• Child Support;
• Custody;
• College Costs/Private School Costs for Children;
• Insurance Issues;
• Counsel Fees;
• Parenting Time.
Of course, it’s often important to go through a formal discovery process. Let’s next turn to step 6 to learn a little more about discovery in a divorce action.
Step 6: Discovery
Discovery is the process of seeking and providing information. It may require providing years of bank statements, income tax returns, credit card statements, retirement account information, and much more. Discovery is time-consuming and expensive, and sometimes can be limited. It’s also a subject that is so involved that it is largely beyond the scope of this book. That said, discovery is quite important—particularly if you suspect the other party is hiding assets or engaging in other suspicious behavior.
In some cases discovery may be minimal and in others it may require retaining expensive experts such as business evaluators, forensic accountants, and employability or custody experts.
Some of the basic discovery methods include interrogatories, admissions, requests for production of documents, authorizations, subpoenas, and in some instances, the taking of depositions, which can be a very effective process for gaining leverage and eliciting admissions from the opposing party.
Let’s now move on to step seven: continuing negotiations and the drafting of a Marital Settlement Proposal.
Step 7: Continuing Negotiations and the Marital Settlement Agreement
Sometimes, the divorce process can become so bogged down in minutia and emotional baggage, that the final destination becomes obscured.
The final destination is (almost always) a formal divorce. But divorce attorneys understand that it’s much more than that. A divorce–if properly resolved–should also provide a sense of closure. There will always be a few loose ends, but an effective divorce agreement must attempt to crystallize the parties’ intent and provide a roadmap for how to handle future issues. This is the role of New Jersey Marital Settlement Agreements (a/k/a Divorce Agreements/Property Settlement Agreements).
For better or worse, most parties to a divorce will continue to maintain some sort of relationship with their former spouse. They will likely be bound together by shared children, friends, or other issues. A divorce is the ultimate goal, but what are the “rules” post-divorce? There will always be applicable law, but the Marital Settlement Agreement will in many ways become the law of the divorce. I often compare the divorce agreement to the rules found in a board-game in that they provide an overarching structure that each party can rely upon. For instance, what if following the divorce you and your ex-spouse debate which of you will spend Thanksgiving with the children?
The Marital Settlement Agreement will generally incorporate language addressing this issue. It will say something to the effect of: “Husband shall have parenting time with the children each Thanksgiving from 8:00 a.m., until 3:00 p.m.., and the Wife shall have parenting time with the children each Thanksgiving after 3:00 p.m., or “Wife shall have Thanksgiving parenting time in odd years and the Husband in even years.”
A Marital Settlement Agreement that does not provide such guidance may lead to the need for further court intervention. I’ve had a few clients argue that this level of detail is not necessary, because the parties will “work it out between themselves.” That might be the case for some parties, but it doesn’t leave a fallback position should relationships sour. Such terms may be relaxed between the parties like the rules to a board game may be relaxed but should matters turn contested the framework will be important for providing a path forward towards resolution absent additional court intervention.
The Marital Settlement Agreement encapsulates the disposition of issues in the divorce. It should address the items described above, including but not limited to matters of child support and equitable distribution of assets and alimony or the waiver of alimony (and much more). Although review of alimony and equitable distribution law is somewhat beyond the scope of this packet, such issues can also be extremely complex. Employability issues, salary, whether someone is a W-2 wage earner or a business owner (or both), whether assets are marital or exempt as gifted, inherited or premarital, and many other complex issues involving potential tax ramifications, pension distribution/QDRO’s, stock options and the like may all be considered within a Marital Settlement Agreement. It is important that all relevant issues be agreed, within reason, prior to entry of the divorce and executed in a formal written agreement. In sum no Agreement can include a contingency for every issue, but it’s important to cover every conceivable important issue as part of the divorce resolution.
New Jersey Marital Settlement Agreements are probably the most important document overall in the divorce process. They, along with the Case Information Statement, will be used as evidence should the need for future court appearances be required (example – to modify child support).
It’s important that the Marital Settlement Agreement is detail oriented and that your attorney has crafted the terms to incorporate the full Agreement, and to also insure that the Agreement is fair. It’s not unusual for Agreements to be modified/negotiated ten or more times prior to the parties executing the Agreement prior to the entry of an uncontested divorce. In my opinion, it’s better to have these arguments worked out now rather than get divorced only to return to Court to address something the Agreement does not cover.
Now it’s time to move on to Step 8 of the contested divorce process: The Early Settlement Panel.
Step Eight: Early Settlement Panels (“ESP’S”)
If you pursue New Jersey Divorce litigation long enough, you will eventually be required to attend an Early Settlement Panel. This can be a confusing development for parties to a divorce who will each likely have many questions such as: what is an early settlement panel? Or: who makes up this panel, and what is its function?
Luckily, a New Jersey Early Settlement Panel is not as complicated as it may first appear to be.
New Jersey Early Settlement Panels: What Are They?
Essentially, a New Jersey Early Settlement Panel is a court-ordered form of non-binding arbitration. It is a required hearing under Court Rule 5:5-5. On the day of the early settlement panel, both parties and their attorneys will be scheduled to attend Court and have an audience with the Early Settlement panelists.
There, the panel members will usually meet first with the attorneys, and later with the parties. It should be noted, however, that procedures vary greatly amongst counties regarding Early Settlement Panel Hearings. Prior to the Early Settlement Panel day, for instance, most but not all counties/panelists will require some form of legal memorandum and/or legal documentation from each of the parties.
An Early Settlement Panel often takes the following format: the panelists ask the attorneys to review the major outstanding issues. The basic goal of every panel is to endorse or effectuate settlement. This is one of many ways the court system helps control its docket and attempt to reduce the amount of pending divorces within the County.
Parties’ counsel will generally appear before the panel without clients and will each lay out their arguments. Thereafter, the parties will generally be brought in, and the panelists will give their opinions as to how they the panelists believe the Judge would decide the outstanding issues. The underlying goal is that parties who have been advancing unsupportable positions will, upon learning that their positions are not likely to prevail, be more willing to drop those positions and enter into a fair settlement.
Since the decision is non-binding, the panelists cannot force the parties to be bound by their decision or to otherwise settle.
New Jersey Early Settlement Panels: Who Are the Panelists?
The panelists are generally two (2) experienced in-county family law attorneys. They are volunteering their time.
Early Settlement Panels are important. Although Early Settlement Panels do not create a binding disposition of a case, they do shape the tenor of future negotiations. And the ESP hearing just might lead to a settlement.
Now, let’s move on to step nine: Court Ordered Economic Mediation.
Step 9: Court-Ordered Economic Mediation
If you didn’t settle the case at the Early Settlement Panel or shortly thereafter, then in most counties, you will be assigned to mandatory economic mediation. The Court will provide a list of mediators (generally attorneys with mediation experience). Both parties and their attorneys will then be required to meet with the mediators to attempt to try and resolve the financial issues between the parties.
Under the New Jersey Court Rules, the mediator’s first two (2) hours are volunteered and thus not billed. After that, if the parties wish to continue mediation, the mediator will bill at his or her regular rate.
Economic mediation is another attempt by the Court system to dispose of your case without using a great deal of judicial resources. The next step in the process, the Intensive Settlement Conference is also the product of that necessity.
Step 10: Intensive Settlement Conference
So, here we are, at the precipice of trial. This is the last attempt to settle before intensive trial preparations begin. This is the family law participant’s last stand before trial.
The intensive settlement is basically a “lock-in.” The parties and their attorneys are required to come to Court and stay there all day. They may generally leave when they settle the case or the Court closes at 4:30PM. If an Agreement is not reached, then the assumption is trial, although an Agreement can be worked out at any time, including during a trial.
By the time you’re at an intensive settlement conference, you should be very close to settling the case. If not, then it’s on to the eleventh and final step of the process: The Trial.
Step 11: The Trial
Again, the New Jersey Divorce Trial is too large a topic to address in this book. But I do want to relay a few basic pieces of information.
For one, the trial likely won’t be continuous. What that means is that you might be called in March 3 for half a day, then have your trial continue on March 18th for a full day, and then pick up again sometime in May. Finally, once a trial has concluded it may take months for the judge to write his or her opinion. In short, it’s generally a slow and costly process. That’s why the vast majority of New Jersey Divorces settle prior to trial.
Philosophically, it’s important to prepare as though every case will go to trial even though statistically the vast majority of cases settle prior thereto. This allows you to gain leverage and negotiate from a position of strength. By preparing for trial, you will ironically often be better able to settle the case.
The Trial: Conclusion
Every case is fact-sensitive, so you should review all of the available grounds for divorce with your attorney to ensure you select the proper grounds for YOUR case.
Partner with Carl Taylor, Esq.
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