Divorce is both an emotional and a legal process. Your attorney
will work closely with you to achieve your goals. Your attorney
will assist you and your children in meeting your present and
future financial needs and in resolving problems dealing with
custody, visitation, support and dividing financial assets.
This guidebook contains a brief explanation of the legal terms and procedures you may encounter in the divorce process. It also contains answers to some of the most commonly asked questions. When you are a well-informed client, actively participating in your own case, you are most likely to achieve whatever goals you and your attorney decide are appropriate.
I. The Legal Process
II. Frequently Asked Questions
Either party may begin the divorce process or other family law
action by filing a Complaint. The Complaint, also known
as a pleading, officially announces your requests, such as custody
and alimony, to the Court. The party who first files this Complaint
becomes the plaintiff and the other party becomes the defendant.
If the defendant also wishes to file for divorce, he or she files
a set of papers called a Counterclaim.
Each party to a divorce action prepares a Case Information
Statement (C.I.S.) that describes his or her income, expenses,
assets and liabilities. You and your attorney will get more information
about marital finances through the discovery process by
way of interrogatories (questions answered on paper), depositions
(questions asked in person) and by showing other relevant documents.
You may work closely with financial experts to assign value to
other assets such as real estate, businesses, or deferred retirement
plans. The information gained during discovery may help you and
your attorney try to settle the issues in your case. When trying
to settle your case, you may schedule a conference with both parties
and their lawyers, or appear before the Early Settlement Panel,
or your attorneys will negotiate with each other.
In addition to financial issues, you may have child custody and visitation matters that must resolved. Your attorney should discuss with you the use of mental health professionals, such as custody experts.
Sometimes problems occur before trial and require immediate attention.
These issues could include a need for support or visitation. You
and your attorney may file an application to the Court for relief
pending the outcome of a trial. This application is called a Notice
of Motion or an Order to Show Cause and results in
a temporary court order.
Mediation is an alternative to the traditional adversarial
litigation process for settling divorce-related issues. Ask about
the pros and cons of mediation and whether it is right for you
and your spouse.
When and if a settlement is reached, both parties briefly appear
in court for an uncontested divorce. If both parties cannot
agree upon a settlement, a trial is scheduled. Because of the
time and expense involved, few cases actually go to trial. However,
there may be a more limited trial, or hearing, on a specific
issue such as support.
1. How soon will I be divorced?
Many factors affect the length of time it takes for a divorce
to become final. Some matters are concluded in a few months; others
take much longer. Sometimes mediation of one or more issues can
expedite a case. The extent and type of assets subject to distribution
may determine how soon you will be divorced, as well as how crowded
the court calendars are and how cooperative both parties are.
In most cases your divorce will occur shortly after you and your
spouse reach an agreement.
2. How can I shorten the divorce process?
Your assistance in providing documents, cooperating with discovery,
and responding promptly to your attorney's requests concerning
motions and certifications filed by the other party, will avoid
delays and speed settlement. If a settlement is reached, the case
proceeds as uncontested, and the Court promptly assigns a hearing
date. At that time, the Court grants a divorce to the parties
and incorporates the agreement into a judgment if it determines
that you both reached the agreement voluntarily.
3. On what basis may a divorce be granted?
New Jersey law provides the following grounds for divorce:
4. Does fault make a difference?
The fault or wrongdoing of a party in a divorce action has no
bearing on how assets will be divided that were acquired during
the marriage. The Court may, but rarely does, consider the grounds
for divorce as a factor in determining alimony. So even though
fault is an emotional factor in a divorce, it has little influence
on the terms of a final settlement.
5. What are my rights in divorce?
You have the right to seek support for yourself and your children,
custody of or visitation with your children, equitable distribution
of assets, counsel fees and, for women, resumption of the use
of a maiden name. Depending upon individual circumstances, you
may be entitled to additional rights.
6. What are the Child Support Guidelines?
The Court has adopted guidelines intended to provide guidance
about what it actually costs to raise children. The Guidelines
fix a range of support that should be paid by both parents, proportionate
to their incomes. The Court presumes that the Guidelines are correct.
However, you may negotiate child support amounts beyond or even
below those in the Guidelines. The Court may modify the levels
in the Guidelines if it decides that, due to the particular circumstances
of your family, the amount is unjust or inappropriate. The Court
may deviate from the guidelines if the combined net income of
both parties is more than $1,000 per week. Child care costs are
considered separately.
7. What is equitable distribution?
Equitable distribution means a fair division of the assets and
liabilities acquired during the marriage. The Court has the discretion
to divide the assets in any manner that it determines is fair
-- although not necessarily equal -- based on the following criteria:
Depending on your goals, you and your attorney may seek to convince
the Court that these factors dictate that you receive the highest
possible percentage distribution of assets.
8. What is a legal separation?
Although New Jersey law does not provide for a formal legal separation,
it is possible for you and your spouse to agree to live separately
and to resolve all financial and child-related issues in a written
agreement. This agreement may be incorporated into a Judgment
of Divorce in the event you or your spouse files for divorce at
a later time. If you cannot reach an agreement, you can obtain
a divorce from "bed and board." This means that you
will continue to be married although the courts grant all other
rights normally incidental to divorce, such as equitable distribution
of assets.
9. May I leave the marital home?
You are free to leave the home, but you should speak with your
attorney before making this or any other major change in your
circumstances. In some situations, physical separation is advisable.
However, in many cases, leaving the home may have serious negative
consequences to you, particularly if you are seeking custody of
the children and they remain with your spouse in the marital home.
Your departure from the home may also create a financial burden
for you and your spouse.
10. Can I make my spouse leave the marital home?
The Court will rarely compel either party to leave the marital
home until the divorce is final, except in the event of domestic
violence. Only in unique circumstances would a party be compelled
to leave the home in the absence of domestic violence. If you
are the victim of physical abuse or verbal harassment, you should
call the police for protection. You may get an emergent order
from either a Municipal or Family Court judge to exclude your
spouse immediately from the marital home. A hearing is supposed
to be held within ten days to determine whether there is enough
evidence to keep your spouse from returning to the home on a permanent
basis. If such an order is granted, your spouse will not be permitted
to return to the home except to retrieve personal belongings,
and then, only with a police escort.
11. How does the Court determine custody?
When the parties cannot reach an agreement regarding the custody
of children, the Court determines the custodial arrangement that
is in the best interests of the children. To make its determination
of custody and visitation, the Court hears testimony from both
parties, any experts they want to present, and any other parties
who have direct knowledge of the ability of each spouse to parent
the children. The Court may also interview the children themselves
or appoint a guardian to represent their interests. The Court
considers the following factors in awarding custody:
12. Can my spouse and I use the same attorney?
No matter how amicable your divorce may be, any divorce proceeding
is adversarial. There are certain results you may desire that
are not in the best interests of, or desired by, your spouse.
As soon as differences develop, a conflict arises. Thus, an attorney
can represent only one person's best interests. If the parties
reach an agreement between themselves, they still need independent
counsel to review their agreement. This will assure each party
that their rights have been protected and that the agreement reflects
their intentions.
13. Will the Court award alimony?
The Court may award permanent alimony to a dependent spouse. It
may also award rehabilitative alimony, which is support for a
fixed period of time -- calculated to permit a spouse to re-enter
the job market. The Court may also combine the two types of alimony.
The following factors are considered by the Court in making an
alimony or maintenance award:
14. What is divorce mediation?
Divorce mediation is an alternative to the traditional adversarial
litigation process for resolving the issues in a divorce. Mediation
tries to help the parties settle the issues themselves. The mediator
will try to do this by facilitating direct negotiations. These
direct negotiations are a way to try to limit reliance on courts
and adversarial attorneys. A mediator can, with the cooperation
of the parties, conduct the same discovery (investigation of relevant
facts concerning assets, etc.) as a litigator. Each party has
his or her own attorney, but the attorneys' roles are limited
in a successful mediation. Mediation is often far less hostile
than litigation, which is a particular benefit when there are
children. Thus, mediation has the potential to be considerably
less expensive than a traditional adversarial divorce as long
as the parties are relatively confident that the other is being
truthful and forthcoming with the presentation of the facts.
15. How much will my divorce cost?
The total cost, similar to the amount of time it may take to complete your divorce, is difficult to predict. The nature and extent of the assets, the complexity of the legal issues, and the cooperation of the parties are significant factors. Most attorneys will require an initial retainer fee before starting to represent you. Usually, you are billed on an hourly basis against that retainer for legal services as they are rendered. You receive periodic statements advising you of the status of your account. In the event your initial retainer is insufficient to cover legal fees and costs, you are expected to pay for services rendered to keep your account current. If, at any time, you have a question about your bill, you should feel free to discuss it with your attorney.
Case Information Statement (CIS). A multi-page financial
document that must be completed by each party, describing the
details of income, expenses, assets and debts.
Certification. A sworn document describing facts of a particular
issue, similar to an affidavit. A certification is filed with
a Notice of Motion or in reply to a Notice of Motion brought by
your spouse.
Deposition. Procedure during which an attorney questions
a witness or a party to the divorce under oath and the questions
and answers are transcribed by a court reporter.
Discovery. Exchange of information regarding all issues
relevant to your divorce. The most frequently used forms of discovery
are interrogatories and depositions.
Early Settlement Panel (ESP). A conference at the Court
House attended by you, your spouse and both attorneys. The facts
of your case are presented to a panel of family law practitioners
who volunteer their time to assist in the settlement of cases.
These panelists consider the specific circumstances of your case
and make a recommendation for settlement. While non-binding, this
recommendation frequently helps the parties and their attorneys
reach a settlement agreement.
Equitable Distribution. Statutory right to receive a fair
distribution of assets acquired during the marriage. See Question
#7 for factors relevant to the distribution of assets.
Interrogatories. Written questions used as part of discovery
which are answered and sworn to by each party.
Joint Custody. There are two aspects to joint custody:
1) Joint legal custody means that the parties share the rights
and responsibilities for making decisions concerning the significant
aspects of a child's life, including educational, medical and
religious issues.
2) Joint physical custody means that the child lives part of the
time with each parent. The nature and extent of sharing of time
may vary significantly.
It is not unusual for parents to have joint legal custody while
one parent has sole or primary physical custody and the other
has substantial time with a child.
Judgment of Divorce. A document that grants a divorce and
reflects the Court's decision following trial, resolving all issues
such as alimony, support, custody, visitation and equitable distribution.
If the parties settle out of court, the Judgment of Divorce includes
all the terms of the Settlement Agreement.
Notice of Motion. To obtain a court order for support,
discovery or other relief, either party may file a Notice of Motion
with the Court. The Notice is supported by the certification of
the party seeking the relief.
Most often, the Court permits attorneys to appear in court and
make arguments on behalf of their clients on the return date of
the motion. Clients may appear in court on motion days to observe
the procedure but are rarely allowed to testify. Occasionally,
the Court makes its decision solely by reading the papers submitted.
After the decision is entered, one of the lawyers prepares an
order that documents the judge's ruling.
Order. A document that reflects the Court's decision after
hearing a Motion or Order to Show Cause.
Order to Show Cause. When emergency relief is sought from
the Court, a party may file an Order to Show Cause. For example,
a party might file an Order to Show Cause when there is imminent
threat that funds will be dissipated or that a child will be taken
out of the State.
Trial. If the parties cannot resolve their differences,
the parties and their witnesses testify and present evidence in
open court, subject to interrogation by the other spouse's lawyer.
At the conclusion of the trial, the Court renders a decision called
a Judgment.