Divorce Litigation Procedure
A divorce is initiated by one person filing a Complaint with the Court. In the Complaint, the person must allege the grounds for the divorce, and they can also seek relief for issues related to the marriage, such as child custody, parenting time or visitation, child support, alimony, property distribution and attorney's fees. Once the Complaint is filed, it must be served upon the other person. Within thirty-five days of being served with a copy of the Complaint, the other party must file an Answer. At that time they may also seek a Counterclaim for Divorce, whereby they also seek a divorce from the other. In the Answer and/or Counterclaim, the other party can request whatever relief they are also seeking for the matters related to the divorce.
If the person does not file a response to the Complaint within the thirty-five day period, the person who filed the original Complaint for Divorce may begin to take the necessary steps to obtain a default judgment, and after several legal steps are taken, a judgment may be entered in that persons favor for the relief they are seeking, provided the relief they are seeking is reasonable to the Court.
If the party files a response to the Complaint, the case will eventually be scheduled for a trial date before a judge. There are several steps that occur before the trial date.
It is important to note that although there is a clear procedure for the legal steps that are necessary to litigate the divorce, the vast number of cases are resolved by agreement of the parties. Please check the page "How to Resolve a Divorce" for a further description of various dispute resolution methods available to derive the agreement. Once the parties have an agreement on the issues, they can enter into an uncontested divorce. Thus, while you may be pursuing the litigation of your case, and preparing your case for the trial, it is also important to be attempting to arrive at a fair agreement, or at least be working on building the foundation for the agreement in the future.
It is also noteworthy that, while this site provides the general legal background for issues regarding child support, alimony and property distribution, there are many facets to an agreement, and the parties have great flexibility in crafting an agreement that works best for the particular financial circumstances. There is an inter-relationship between these three financial areas, and there are also greatly different tax implications. For example, in some cases, it may be in one's interests to have a greater amount of alimony for a shorter term, a waiver of alimony with increased property distribution, lump sum settlement of alimony, increased child support with lesser alimony, or even agreements that attempt to limit the ability to modify support in the future. There are a countless number of scenarios that must be considered and may prove to have a great financial benefit than merely applying each of the financial concepts individually in your case.
The first Court appearance for the attorneys in the case will be a Case Management Conference with the Court to schedule events in the case, including discovery deadlines. Prior to trial, the parties engage in what is called discovery, where they can obtain important information about their case from the other side, or third persons, such as financial documents, bank records or the identity of witnesses. The parties also have the right to obtain whatever expert witnesses that will be necessary to establish their case at trial, including real estate appraisers, business appraisers or custody evaluators. The deadlines for the completion of this discovery is set at this first Conference.
Parent Educational Seminar/Custody Mediation
If minor children are involved in the case, the parties will be required to attend a seminar at the Courthouse called a Parent Educational Seminar, which provides information designed to keep the parents focused on the rights of the children, and to help the parents minimize the effect of their own conflict on the children. If custody or parenting time is not resolved by agreement of the parties, prior to any trial the parties are usually required to attend a mediation at the Courthouse in an effort to resolve these issues.
Temporary Orders/Pendente Lite
While the case is pending, the parties have the right to seek from the Court temporary relief, such as a determination of a temporary custody arrangement, temporary support, or contribution for the costs of the attorney fees. These temporary issues can be decided by the Court upon the filing of a motion, and these types of Orders usually last only while the case is pending. The parties can also seek emergent relief from the Court, if necessary.
Early Settlement Panel
Prior to trial, if the case is not yet resolved by agreement, the parties must appear before what is called a Matrimonial Early Settlement Panel to address the economic issues in dispute. This appearance occurs prior to the scheduling of the trial date, and the parties and their attorneys appear before two independent matrimonial attorneys who make recommendations to help facilitate the settlement of the financial issues related to the case. The recommendations are confidential and non-binding, and very often are helpful in resolving disputes.
If the parties cannot agree on some or all of the issues, these issues will be decided by judge at trial, and this decision could be further subject to an appeal.
Life After Divorce
Obtaining a Judgment of Divorce is not always the final step. Many problems may arise between you and your ex-spouse after the divorce that need resolution by the Court. Sometimes parties do not adhere to the terms of their Martial Settlement Agreements; there may need to be a change of custody regarding the children; child support or alimony may need to be reduced, or your former spouse may have stopped paying support altogether. Perhaps you have lost your job and can no longer afford your alimony and child support obligations. The Court offers many forms of relief to litigants long after the divorce has been finalized.
Divorce Lawyer in New Jersey
When two people decide to get married, it is a happy time in their lives. However, nowadays it is important for couples to be realistic about their future. Almost one-half of marriages end in divorce. No matter how much you love your spouse-to-be, statistics are against you.
If you have acquired assets prior to your marriage, it may be in your best interest to sit down with your future husband or wife and discuss a premarital or antenuptial agreement. A pPremarital or antenuptial Agreement is an agreement between prospective spouses or partners in a civil union couple made in contemplation of marriage or a civil union to be effective upon the marriage or civil union. Premarital agreements allow couples to keep assets separate as well as define each parties rights in the event of a divorce.
Premarital agreements are governed by The Uniform Premarital Agreement Act, known as N.J.S.A. 2A 37:2-31. A premarital agreement must be in writing, with a statement of assets annexed to it, signed by both parties, and it is enforceable without consideration.
Parties to a premarital Agreement may contract with respect to:
- Property rights and obligations whenever and wherever the property was acquired or located;
- The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage or control property;
- Asset division and disposition of property/debt upon separation, divorce or death;
- Modification/elimination of spousal support (alimony);
- Arranging for a will or trust to carry out provisions of a prenuptial agreement;
- Disposition rights of a life insurance policy;
- The choice of law governing the construction of the agreement; and
- Any other matter of personal rights and obligations that do not violate law or public policy.
A premarital agreement cannot limit such things as child support or other financial obligations to a child, such as maintaining health or life insurance. It also cannot make stipulations upon who will have custody or visitation rights in the case of a divorce.