Overview of the Divorce Process in New Jersey
Stage 1. Commencement of the Divorce Action:
In New Jersey, the divorce process typically commences with the filing of a “Complaint for Divorce”. The Complaint must demonstrate that the Court has the authority or “jurisdiction” to grant a Judgment of Divorce to the filing party (i.e. the “Plaintiff”). This “proof of jurisdiction” must be made regardless of whether the Complaint is for an “absolute divorce” (i.e. a divorce from the bonds of matrimony) or a “limited divorce” (i.e. a “Divorce from Bed and Board” which is akin to a legal separation). In New Jersey, jurisdiction exists when either spouse (i.e. Plaintiff or Defendant) has resided in New Jersey for one year prior to the filing of the Divorce Complaint. An exception exists for cases arising out of adultery, for which this one-year “residence requirement” is waived. See N.J.S.A. § 2A:34-10.
(By the same token, no state in the U.S. will recognize a “mail-order divorce” that is granted by a Court in a foreign nation to two U.S. residents, neither of whom resided in the country where the mail-order divorce was obtained. Accordingly, mail-order divorces in Mexico and the Dominican Republic are a waste of money).
In addition, the Divorce Complaint outlines the Plaintiff’s case by setting forth the “grounds” for divorce and asks the Court to rule on issues concerning the parties’ marriage, child custody, alimony or “spousal support”, child support and division of marital property. In New Jersey, the grounds for divorce are as follows:
c. Extreme cruelty;
e. Addiction to drugs or habitual drunkenness for a period of 12 or more consecutive months after marriage and prior to filing for divorce;
f. Institutionalization for mental illness for a period of 24 or more consecutive months after marriage and prior to filing for divorce;
h. Unconsented sexual act by a spouse;
i. Irreconcilable differences (“No-Fault Divorce”)
See N.J.S.A. § 2A:34-2.
Since the creation of No-Fault Divorce by the New Jersey Legislature in 2008, it is common for “filing-spouses” to plead “Irreconcilable Differences” as the only "grounds" for divorce. The Divorce complaint must be filed with the Court (specifically, the Superior Court of New Jersey, Chancery Division, Family Part) and served on the Defendant.
If the Defendant disagrees with the allegations set forth in the Divorce Complaint, he (i.e. he or she) will have the opportunity to submit papers containing his “version” of the facts. This is referred to as “contesting the divorce”. If, however, the Defendant agrees with the allegations contained in the Divorce Complaint, then the divorce is an “uncontested divorce”.
Stage 2. Case Management:
Once the Divorce Complaint has been filed on the Court’s docket and served on the Defendant, the next step is for the Court to hold a Case Management Conference (“CMC”). This conference allows the Court to meet the parties and become familiar with the specific issues that are being contested. Based on the outcome of this discussion, the Court sets deadlines for the parties to complete all necessary “Discovery” and determine if any experts are needed and by what dates they should be retained.
Stage 3. Discovery:
Discovery is the stage in litigation where the parties exchange the information necessary for each to properly litigate his (or her) case. This includes important financial information and disclosure of the quantity and location of all marital assets. If the parties own property, then real-estate appraisals are also conducted during this stage of the litigation. Typically, the following discovery tools are utilized:
1. Request for Production of Documents: A written request for the other party to produce specific documents that the requesting party needs in order to properly litigate his (or her) case.
2. Interrogatories: A set of written questions that are to be answered in writing by the other party with the assistance of his (or her) lawyer.
3. Deposition(s): A deposition is the taking of an oral statement of a witness under oath, before trial. A deposition is taken out of Court, and virtually always at the office of one of the lawyers involved in the case, and the testimony elicited is recorded by a transcriber. The statements made at a deposition are treated the same as statements made while under oath in open court.
If the parties can agree on a resolution of all of the issues to be decided by the Court in order to enter a Judgment of Divorce, then a Settlement Agreement will be prepared by the attorneys involved and the parties will appear in Court to enter the Agreement on the record and finalize the divorce.
However, if no agreement is reached by the parties, the Court will require the parties to participate in a couple of programs that have been created in an attempt to assist the parties in settling the matter without the need for trial.
I.Early Settlement Panel (“ESP”):
The two spouses and their respective attorneys meet with a panel of experienced divorce lawyers, none of whom have an interest in the case. The panel reviews the facts of the case and any relevant documents presented by the parties. The panel then makes a recommendation as to how they believe the case would be adjudicated if it proceeded to trial. If the parties accept the panel’s recommendations, a judge would likely be able finalize the divorce that same day.
The parties and their attorneys will confer with one another to mutually select an economic mediator. Once the economic mediator reviews the facts of the case and any documents submitted by the parties, he (or she) will meet with the parties and recommend the best way to settle the divorce litigation. Like the ESP, the recommendations of the mediator are non-binding. However, if the parties accept the recommendations or negotiate an acceptable agreement during the mediation conference, the economic aspects of the divorce litigation can be reduced to a written settlement agreement.
Stage 4. Trial:
Trial is the final step in the divorce process. At trial, the Court will hear testimony from each party, their experts, and their witnesses before ruling on the outstanding issues. A Judgment of Divorce will be entered at that time.
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