The Nuts and Bolts of the New
Jersey Divorce Procedure
When you’re going through a divorce in New Jersey, you’ll often feel confused about what the next steps will be. You’ll receive court notices for mandatory parenting classes and wonder if the court is judging your parenting skills.
You’ll receive other court notices with odd acronyms such as
ESP and ISC and wonder what they mean. By familiarizing
yourself with the basic procedures below, you’ll have a roadmap
for the flow of a New Jersey divorce.
BASIC OUTLINE OF A NEW JERSEY DIVORCE
A contested New Jersey divorce can take months or even years
to settle. A divorce may also take years to be finalized if the case
goes to trial. Appropriate aggressive techniques to expedite favorable settlement negotiations will often be employed on your
behalf to limit cost and maximize results.
One major point to be aware of is that a divorce can essentially end at any time once both parties agree to the divorce
terms in a document generally called the Marital Settlement Agreement (MSA). A divorce is finalized about a month after
both parties sign off on it. Some divorces settle amicably before
either party files, other cases resolve with the help of mediators,
others enter arbitration, and others go all the way to trial. But
regardless of the track taken, the case will resolve only after both
parties agree in writing to the MSA or if not, the court hears a
trial and makes its determination about the divorce terms.
The outline below is by no means exhaustive; there are several
alternative dispute-resolution processes available in New Jersey
divorce matters including mediation or collaborative law, which firm partner Lisa Stein-Browning, Esq., is trained in.
Such methods may be the least expensive and most efficient ways of working toward a divorce, but in certain cases, clients will require aggressive representation to protect their interests.
The list below assumes that mediation or other alternative
dispute-resolution processes are not something you wish to
pursue or perhaps cannot pursue because of domestic violence
or other issues that may render mediation impractical or impossible. In some cases, alternative methods might not give you
the results you want.
- Determining whether a divorce is the right decision for
- Choosing an attorney or deciding to represent yourself
- Pleadings and Case Information Statements
- Case Management Conferences
- Beginning negotiations
- Continuing negotiations/drafting a Marital Settlement
- Early Settlement Panel (ESP)
- Court-ordered economic mediation
- All-day Intensive Settlement Conference (ISC)
- Going to court and have a judge rule on contested
matter I know what you’re probably thinking—I don’t know what half of it means!
- What does discovery involve? What is an Early
Settlement Panel? Don’t worry. I explain each step in the next
chapter. But first, let’s review what constitutes the different acceptable grounds for divorce in New Jersey.
GROUNDS FOR DIVORCE IN NEW JERSEY
There are various grounds for divorce in New Jersey, which long
ago moved away from more fault-based counts as a requirement.
As you’ll see below, most people today file under irreconcilable
differences unless there is a distinct tactical advantage to utilizing one of the fault-based counts.
- IRRECONCILABLE DIFFERENCES
This is the most common grounds for divorce in New Jersey
despite the fact that it was only recently recognized by the state.
Irreconcilable differences is essentially an expedited form of
no-fault divorce. The major statutory requirement is that what
are called irreconcilable differences have occurred that caused
the breakdown of the marriage, that there is no prospect of reconciliation, and that these irreconcilable differences have been
ongoing for at least six months.
Only one party needs to seek a divorce as in New Jersey
there is no requirement that both parties agree to divorce. Your
spouse cannot deny your filing a divorce
complaint in New Jersey, but he or she
could tie up the divorce process by forcing a trial.
- NO FAULT
New Jersey law says that a couple who
live apart for at least eighteen consecutive months with no reasonable prospect for reconciliation can divorce on that
basis. These requirements make no-fault divorce rare in New
Jersey, so most divorcing couples take the irreconcilable-differences route.
- EXTREME MENTAL OR PHYSICAL CRUELTY
The rest of the grounds for divorce are more fault-based. A
claim of extreme mental or physical cruelty requires proof of
“any physical or mental cruelty which endangers the safety or
health of the plaintiff or makes it improper or unreasonable to
expect the Plaintiff to continue to cohabit with the Defendant.”
Clients often ask about using adultery as grounds for divorce;
the problem is establishing adultery through circumstantial or
other evidence. Moreover, the suspected partner in the alleged
infidelity must then be named in the complaint and served as a
correspondent to the divorce.
Using adultery as grounds for divorce in New Jersey is often
so time consuming and expensive that it’s not worth the effort.
And the benefits of an adultery claim are in most cases minimal
if they exist at all. The court rules do not “punish” an adulterer
in terms of alimony or equitable distribution. At best, it may
show a lack of fitness as a parent in certain cases.
And because New Jersey is a no-fault state, even if someone
is more to blame for the breakdown of the marriage, he or she
will not generally be punished in any way in the divorce.
- OTHER GROUNDS
Other New Jersey grounds for divorce are available, but they are
exceedingly rare. They include
• deviant sexual behavior
• habitual drunkenness or drug habituation
In certain cases, a Complaint for Divorce in New Jersey could
include more than one or all the above counts.
Now that you’re familiar with the different grounds for divorce in New Jersey, let’s familiarize ourselves with the uncontested-divorce process.
Most people don’t want to be involved in long, expensive, and
drawn-out litigation if there’s an amicable path forward. To that
end, an uncontested divorce may make more sense for the clients than protracted divorce litigation.
Of course, negotiating a settlement will not always be easy,
but the goal of both parties should generally be to be open to
favorable settlement terms. At the same time, cases settle favorably based on leverage, and thus even when the goal is to quickly
settle a case, it may be appropriate to consider aggressive discovery techniques, motion practices, and other actions to create
additional leverage to reach a favorable settlement.
NEW JERSEY UNCONTESTED-DIVORCE HEARINGS
A New Jersey uncontested-divorce hearing will be scheduled
when the parties reach a settlement and advise the court of that
and their readiness to finalize their divorce. An uncontested-divorce hearing is perhaps somewhat ironically one of the least
complex parts of the entire divorce process.
- The plaintiff and his or her attorney (assuming the plaintiff has counsel) will attend the uncontested hearing. The defendant and his or her counsel will often choose to attend as
well though that’s not required provided the defendant hasn’t
filed a counterclaim.
- The parties will then be asked certain questions by their
counsel to establish a “cause of action” and show that the settlement agreement is valid and was willingly entered into. The
cause of action is the grounds for the divorce such as irreconcilable differences or extreme cruelty. Because New Jersey is a
no-fault divorce state, divorces proceed as long as one of the
parties want it to go on.
- The judge may follow up with a few additional questions
though he or she will not make a determination as to whether
the agreement is fair and equitable.
One particularly effective method for working toward an uncontested divorce is attending mediation. Both parties will likely retain their own counsel to assist them and will then choose
a mutually acceptable mediator (generally splitting the cost).
- The parties (generally with assistance from their attorneys) will
then attempt to reach an understanding—a Memorandum of
Understanding, an MOU. After that, one of the attorneys will
draft a settlement agreement.
- Mediation is generally an expedited and less-expensive
method of finalizing a divorce, but it isn’t favored in cases involving a history of domestic violence or when one party will
not be able to hold his or her own during the mediation process
either with or without a lawyer.
- AFTER THE UNCONTESTED-DIVORCE HEARING
After that, the parties will be given gold-sealed copies of their
Judgment of Divorce. It is important to keep this copy and the
Marital Settlement Agreement, the MSA, which is sometimes
referred to as the Property Settlement Agreement (PSA), in a
safe place should some unresolved issues or other post-divorce
loose ends or business to be taken care of. Your attorney should
offer guidance regarding these issues. One thing to consider is
immediately changing your will and life insurance policies so
your ex won’t remain as a beneficiary.
- The uncontested-divorce hearing is a day of closure, most
likely a bittersweet day for both parties. It’s an end and a
beginning. Your attorney should notify you of what to expect the day of the hearing, review the uncontested-divorce questions with you
in advance, and later advise you of how to tie up post-divorce
loose ends and determine whether you wish for continued representation relating to such issues as dividing marital assets or
implementing other clauses in the agreement.
- But if litigation becomes inevitable, you will begin taking
steps toward a contested divorce.