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 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 you
- Choosing an attorney or deciding to represent yourself
- Pleadings and Case Information Statements
- Case Management Conferences
- Beginning negotiations
- Continuing negotiations/drafting a Marital Settlement Agreement (MSA)
- 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.”
- ADULTERY. 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.