The divorce process begins with the filing of a Complaint. The complaint doesn’t go into detail about all the things you want, but asks for general things like “equitable distribution” or “spousal and child support.”
The complaint will state “grounds” for divorce. The court needs a legal reason to grant a divorce. In New Jersey, the most common grounds are “no fault” (can only be filed after a valid 18 month separation) or “irreconcilable differences” where you claim such differences for six months prior to complaint that it’s unreasonable to continue the marriage.
A claim of irreconcilable differences doesn’t generally require evidence to establish a complaint, and it’s the easiest to prove. There are sometimes other grounds for divorce such as “extreme cruelty” or “adultery,” but this is something that should be discussed with your attorney.
Once you file the complaint with the court, it’s assigned a docket number then served to your spouse. (That docket number will mark your divorce in the court system forever.) S/he then has 35 days to respond to the complaint with the court. If you’re the one being served, you may need to file a cross-complaint in addition to an answer. It’s important to answer a complaint for divorce – unless a settlement has been worked – because after 35 days you go into Default. Default means you can no longer respond to the complaint (though at times you can vacate a default) and your spouse can go to court without opposition from you. That’s why it’s so important to not delay if you’re being served.
Once an answer is made, the court will set a Case Management Conference for “discovery.” Discovery means how the parties will get (and share) information with one another to resolve the case. Examples of discovery are interrogatories (questions one party sends the other party that they must answer), requests for documents (tax returns, business records), and appraisals on homes or pensions. The Case Management Conference can be waived if both parties agree on an appropriate schedule for these requests and submit them to court.
As discovery progresses, your lawyer will attempt to negotiate a Marital Settlement Agreement because most divorces don’t go to trial. The costs of trial are too high! At Law Offices of Lynda Hinkle, we’ll attempt to negotiate as early and often, to save clients money and headaches. During the discovery period, your children may be required to attend a parental mediation. Your lawyer won’t attent but is available to discuss them with you both before and after.
Any time after filing the complaint, either party can file a Pendente Lite motion requesting interim relief until the divorce is finalized. Some examples are spousal support, child support and counsel fees. You should talk to you lawyer about filing a Pendente Lite motion for immediate relief, or if you have more resources than your spouse you should discuss how to avoid one being filed against you. If the other side is withholding funds, it’s sometimes the only way to keep cash flowing in your direction during what can be a lengthy process.
If a Marital Settlement Agreement is worked out, the parties can request a default hearing. Only the party who filed the initial complaint (Plaintiff) is required to attend. At this hearing, a series of questions will be asked regarding the divorce settlement the court will grant that day. Your lawyer will review these questions in advance. At the end of the hearing, your divorce will be granted. If you wish to resume a birth name at that time, paperwork can be submitted to court can also occur.
If a Marital Settlement isn’t worked out, the next step is a Matrimonial Early Settlement Panel (MESP). Your lawyer will produce a memorandum to two veteran attorneys to read and discuss. Although their opinion is non-binding, many divorces are settled at MESP because the likely outcome and the costs of trial frequently encourage settlement. If the parties come to an agreement, the divorce can be granted that day. Otherwise court will set a trial date.
It’s wise to avoid the expense of litigation if you can avoid it. Sometimes, that’s not possible if your spouse is unreasonable or unwilling to acknowledge the assets of the marriage.
Although this guide provides some general information, the specifics of every case are unique. It is imperative that you make sure that your rights are protected, because once a divorce is final you will find it very difficult or impossible to undo things you don’t like about the outcome.
You can call our office at 856-227-7888, or contact us at [email protected] for a free consultation to discuss your legal options.
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