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New Jersey Divorce Guide
Can you please provide me with an overview of the New Jersey divorce process?
The world of New Jersey divorce law is very complicated. Don't be fooled into believing that you can handle your own divorce case. If you are considering filing for a divorce case, then you should always retain an experienced and affordable divorce lawyer.
There are two parts of every divorce case and they are the procedural and substantive aspects of your case. The procedural aspect of your case involves the scheduling of the discovery and the court dates. Meanwhile, the substantive aspects of the divorce case focus on the legal standards that will apply to any of the issues that are raised in your case.
What are the procedural aspects of a divorce case?
The ultimate goal of a divorce case is to reach a fair and reasonable deal that everyone can live with. A divorce case is not a game wherein there are winners and losers. Everyone loses in a divorce. Approximately 98% of the divorce cases are settled. Once an agreement is reached then the deal is formalized in a written agreement that is called a judgment of divorce or a property settlement agreement. Basically, these legal documents are a legal contract between both spouses. This contract should be written as clearly as possible. The PSA should define the rights and obligations of the parties after they are divorced. If either party fails to comply with the terms of the judgment of divorce, then the aggrieved spouse can file an enforcement motion with the family court.
It is very important to emphasize that the major goal of the divorce process is to encourage the parties to reach a reasonable settlement. The parties can reach a settlement at any time, even before the divorce case is filed. Litigating a divorce case can be a very expensive process. Therefore, if at all possible it is strongly advisable for litigants to settle their case as soon as possible through give and take negotiation and by mutual compromise.
The majority of the cases ultimately reach an amicable settlement. Settling a case is a win-win situation. The family court system is overwhelmed. The family court system is not designed to have trials for all of the cases. If there was a trial for every divorce case, then most county court houses would have to be built as tall as the Empire State Building to handle all of the cases. Moreover, a settlement will also save you a tremendous amount of missed time at work, endless aggravation, and most importantly your hard earned cash.
Nonetheless, it is often difficult to reach a divorce settlement without the assistance of an experienced lawyer. Moreover, most people are very upset once the cold hard reality of divorce stares them in the face. As time wears on most people soften up and become less scattered brained. To start the divorce process a person must file a divorce complaint. The divorce complaint must also have a confidential litigant form, a certification of mediation, and an affidavit of insurance attached to it. The complaint for divorce is then filed with the county clerk. A filing fee must also be paid to file the complaint. Currently the filing fee is $250. Additionally, there is a $25 fee to pay for a parental education court if the parties have children.
After you file the complaint for divorce the clerk will stamp it as filed. Thereafter, you have to serve the summons and complaint to your ex-spouse. You can either have your spouse sign a legal form called an acknowledgment of service to effectuate service. This form will verify that your spouse has received the summons and complaint. Alternatively, you could have a process service company serve your spouse. The typical service fee is $75. The county sheriff also could be used to serve the complaint. However, most county sheriff offices are overwhelmed, and there could be a long delay before they get around to serving your ex-spouse.
Once the divorce complaint has been served upon your spouse, then he or she has thirty-five days to file an answer. The time period to file an answer can be extended if a person files a late answer. The courts always want to give a person chance to participate in his divorce case. Only in the rarest of cases will a judge strictly enforce a default.
Generally, most divorce cases take between six months to one year to be finished. However, the great majority of the cases are settled in about six to nine months. If there are custody issues then the case could take a much longer period of time to litigate.
After the answer is filed, then the next part of the divorce process is called discovery. Basically discovery involves the mutual exchange of information, tax returns, financial portfolio information, retirement account information. The main tools used to effectuate discovery are interrogatories, notices to produce, and depositions. Only in the high end cases are depositions used. In many hotly contested cases the parties use the discovery process to intimidate, harass and annoy each other. The discovery process permits you to obtain as much information as possible about the case before you try to reach a settlement or if necessary are forced to try the case. Additionally, as part of the discovery process, your home will be appraised, bank account statements must be produced, pensions must be valued, and any other important assets must be disclosed.
In the discovery process it is very important that you obtain as much information about your spouse's financial situation as possible. You should obtain any Social Security statements, credit card statements, checkbook registers, cancelled checks, credit/loan applications, and your spouse's resume or curriculum vitae.
The goal of every divorce case is to try to reach a fair and reasonable settlement. Almost all of my clients always advise me that they want to get divorced like yesterday. However, more often than not a divorce drags on for many months if not years. You can't obtain all of your financial information in a week. It takes many months to obtain all of your financial information. Even though you want to settle your case, you should always handle your case like it will have to be tried. The discovery process will generally take three months to complete. If a couple has big bucks then the discovery period can be extended. The court also requires that the parties sign off on a discovery plan. This plan is then memorialized in a form called a case management order. This is basically a scheduling order that clearly defines what information has to be exchanged, and it also sets forth the dates when the material has to be produced. The case management order must be prepared and filed a few weeks after the answer is filed.
The most important document in the discovery process and in the entire case is known as a Case Information Statement (CIS). This 10-page form is a financial disclosure statement. Each spouse must completely fill it out. Your most recent tax return and last three pay stubs must also be attached to it. The CIS is a very comprehensive financial disclosure statement. You really can't settle your case unless both parties have completed it. In the CIS you must disclose all your assets and liabilities, all monthly debts, your income and other relevant financial information. For many people filling out the CIS is pure drudgery. However, it has to be done and there is no excuse for not filing one. In fact if you don't file a CIS then your case could be dismissed. Additionally, if you blow off preparing the CIS then your case could drag on for many more months. Moreover, you will need a CIS in the future if you ever try to reduce your child support or alimony payments.
If the parties are unable to reach a deal to settle their case then they must participate in a non-binding arbitration program called the Early Settlement Program (ESP). This program consists of two neutral lawyers who have ample experience in the world of matrimonial law. They volunteer their valuable time to assist you to settle your case. Approximately one week before your ESP court date, your lawyer must submit a detailed ESP memo to the panelists. In this memo you must outline your position on what will happen to the marital home, how much child support and alimony should be, how will the credit card debts be paid, when and how will the mortgages be refinanced, and how will the retirement accounts be split. The ESP panel does not address any issues of custody or of parenting time.
On the date of your ESP hearing, you will have to wait in the hallway while your lawyer enters the panel room with your spouse's attorney. The panelists will then carefully listen to any legal arguments and positions of the attorneys. Thereafter, the panelists will make a recommendation as to what they believe is a fair settlement of the case. Many cases will be settled at the ESP hearing. Many warring spouses need input from a neutral third party to break any type of log jam in the divorce negotiations. If you reach a deal at the ESP hearing then you can also get divorced on that same day.
If you are still unable to reach a deal at the ESP date, then you have to participate in mediation. The mediation process is not binding. You will have to choose a mediator from a court provided list. The mediator must also provide the first two hours for free. After the first two hours are used up, the average hourly rate for the mediator is about $250 per hour. If the parties have a positive outlook and if they want to settle their case then mediation can work extremely well. However, if the parties just want to keep fighting, then mediation can be a waste of time, and it can be extremely expensive. In many mediation sessions the key issue that the parties fight about is who is going to pay for the mediator's legal bill. The legal bill for many mediators is routinely several thousands of dollars. Moreover, some mediators simply don't do their job, and they are only really concerned about getting paid. If the case drags on, many mediators simply stop working if they are not getting paid. In summary, if you search the web there is endless info about how great mediation is. I don't buy it! Mediation can be extremely expensive and time consuming. Moreover, the skill levels and competence of the mediators vary significantly. Finally, more often than not in many mediation cases the key issue that was fought over was who was going to pay the mediator.
If you have still not reached a settlement after the ESP or in the mediation process, then you will be forced to have to have a trial. The court will then schedule two or more court dates called settlement conferences. At these court meetings the judge will try to assist the parties to reach a deal. If the settlement conference(s) is not successful, then you will receive a trial date. In the majority of the cases your case will be adjourned about three to four times before your case is actually tried. There is an extreme shortage of family court judges. Moreover, there are many emergent cases that are filed such as domestic violence cases and order to show causes. The New Jersey family court system is top notch but it is underfunded and undermanned.
In most counties you have to wait for approximately six months before you actually receive a trial. One of the major problems of waiting so long for a trial is that your ex-spouse could dissipate marital assets during the waiting period. Given this bleak scenario, most people are more than willing to make concessions to reach a settlement so as to avoid waiting so long for their day in court. Additionally, the legal fees can be enormous if you are forced to try your case. Trying a case takes a forest worth of paper and a tremendous amount of time. It is important to note that cases are not tried on a continuous basis. Cases are tried a few hours each day. Therefore, this factor often increases your legal bill by thousands of dollars. Moreover, the judges want pre-trial briefs submitted and summation briefs. These briefs cost big dollars to prepare and they are not free.
What are the major areas of law that will be decided in my divorce case?
New Jersey is an equitable distribution state, meaning that the division of property in a divorce is to be done fairly, not necessarily equally. The court can take into consideration any factor it deems relevant when dividing property, but it must consider certain factors, such as how long the couple was married and the age and health of both spouses, the income or property brought to the marriage by each spouse, the standard of living that was achieved during the marriage, and the extent to which one spouse may have deferred career goals, among others.
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