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The New Jersey Divorce Process in the "Real World"
Can you please provide me with a "quickie" overview of the New Jersey divorce process?
All divorce cases are different. Every divorce has different legal issues and twists. Some divorces are routine. However, more often than not your divorce case can be your own unique and individual nightmare. On a serious note, each divorce has it's own separate financial, legal and parenting time issues. The New Jersey divorce process is not a perfect one. The entire family court system is stretched out to the max. Nonetheless, the judges and the clerks are top notch. The main flaw in the system is that the State of New Jersey is not hiring enough judges to make the family court system as efficiently as it could. There has been a major push by the judiciary to promote mediation. However, mediation is not free, and it only works in some of the cases.
I hate my cheating husband. How can I start the divorce process against him?
The first step of the divorce process is that you have to file a complaint for divorce against your husband. There are now nine grounds for divorce in New Jersey. The most common grounds are for extreme cruelty, irreconcilable differences and adultery. Once your complaint is filed then you have to serve it with a summons attached to it on your husband. The complaint for divorce simply summarizes what type of relief you are seeking. A process server typically must be paid a fee of around $75 to serve your husband. If your husband is willing to accept service of the complaint, then you can simply have him sign an acknowledgment of service. An acknowledgment of service simply is a form that verifies that your husband received the complaint, and that he understands that he has 35 days to file an answer to it. The acknowledgment of service must also be notarized. Once your husband is legally served, then he has 35 days to file an answer to the complaint. If he does not file an answer then he will be in default.
After I served my husband with my complaint for divorce, he moved out of the marital home, and he has now moved in with his new girlfriend. Me and the children have to eat, what should I do now?
You will have to file a motion requesting pendente lite relief. This is probably the most important motion in 95% of all of the divorce cases. This motion will request to the judge to establish a temporary child support award, spousal support, compel the payment of the mortgage, and to maintain health insurance. Quite typically the levels of support are somewhat higher in a pendente lite order (P and L) than it will eventually be in the final divorce judgment. When a judge rules on a P and L motion he often does not have as much information to review as he does when he eventually has to decide the outcome of a case. Given these dynamics, quite often the spouse with the generous P and L order is in no hurry to settle the case or go to trial. In many cases, the spouse with a generous P and L order simply likes to "sit pretty" and see her ex-husband "squirm." I am fully aware that this type of analysis sounds harsh. However, it is the reality as to how the family court system works.
My husband has been served with the complaint for divorce. What is the next step in the divorce process?
The next step in the divorce process is called the discovery phase. Here, both sides must try to collect as much financial information about each other as possible. The most important part of the discovery process is to complete a ten-page form called a Case Information Statement (CIS). This form will take you a few hours to complete. It will contain a detailed listing of your income, expenses, assets and debts. This form must be filed within a few weeks after you file your complaint or answer.
The other financial items that must be disclosed are as follows:
Once you obtain all of the discovery, then your lawyer can then use this information as a starting point to draft a property settlement agreement (PSA) or to start discussing a settlement. If you don't conduct diligent discovery then your case can turn out to be a disaster. All parties are required to make a full disclosure of all of their financial assets and liabilities during the marriage. However, in the real world many unscrupulous parties who hide their money and assets during the divorce process. The family court system is swamped with all types of cases, and there is not that much oversight over the litigant's assets. Therefore, in my estimation the dissipation and hiding of assets are a major problem in the divorce process. Nonetheless, if you conduct thorough discovery then you will significantly increase the likelihood that you will receive a fair "deal" in your case.
What is the difference between a contested and an uncontested divorce?
There are two types of divorces in New Jersey. If the parties reach a deal on the grounds of a settlement, then your divorce is considered to be uncontested. However, if you and your spouse are unable to agree on the divorce terms of a divorce, then you case will be considered contested. In most uncontested cases the parties have only been married a few years and they have no children. There are very few divorces that are considered uncontested if the couple have children. In an uncontested divorce both parties agree on how to divide their assets and debts, how much child support is, who has residential custody, a parenting plan schedule. The advantages of an uncontested divorce are that it will be a much faster process and cheaper. Most uncontested cases only require one court appearance. Meanwhile, contested divorces can be the most difficult experience that you can live through. All of your assets and debts "are up for grabs" in a contested divorce. All of your assets and debts must be split and apportioned. A parenting time plan also must be established. Additionally lawyer fees can be quite high in a contested case.
What exactly is a motion?
If you have a family and if you want to get a divorce then you better get familiarized with family court motions. Motions take a tremendous amount of work to prepare them. They are very expensive. Moreover, motions kill many trees each and every year. There is an endless amount of different types of motions. The different types of notions are:
The list could on and on. If you choose to get a divorce then you will have to live with motions.
If a motion has disputed issues of fact and if the judge simply needs more information then he will schedule a plenary hearing. Plenary hearings are constantly adjourned and they also cost big bucks to litigate. The typical legal fees to prepare and argue a motion range from $1,000 to $3,000 or more.
Motions are very time consuming and they are tedious work. In almost every type of family court motion you are required to attach a new Case Information Statement or CIS. CIS forms are utterly miserable to complete. I wish I could tell you that filing motions was a more streamlined and efficient process but it is not. It is quite astonishing as to how much paper work has to file simply to have child support calculated, to enforce your husband to pay his child support, to try to emancipate your child, or to reduce alimony. Another nasty part of the motion process is that the lawyers constantly try to have the losing party pay counsel fees. In the majority of the cases, your ex-spouse's lawyer will always pad his bills.
If the court grants a counsel fee application then you will be required to pay your ex-spouse's legal fees. This is truly a nightmare scenario, and I have seen many of my client's have an emotional breakdown when they are ordered to pay thousands of dollars of for their ex-spouse's lawyer fees. In closing, the motion process requires an excessive amount of legal paperwork. The ever present threat of being required to pay for your ex-spouse's legal fees is always lurking. Therefore, if you choose to file a motion, then it should always be prepared diligently and completely.
I finally getting divorced. Should I pursue a standard divorce case or should I try mediation?
Whenever you finally decide to take the plunge and change your life and get a divorce, then you must then decide what type of strategy you will take. Do you want to have a Rambo style divorce, with big buck litigators, who charge $400 per hour. Alternatively, do you want to try mediation before you file your divorce case. The common sense approach is to be separated for at least six months, and then file for a divorce. You should not file your divorce with the goal to try to ruin your husband or wife. You should go into your divorce with the attitude of "I will hope for the best, but expect the worst."
The new rage in the divorce world is called mediation. However, in my professional opinion mediation is very overrated. Additionally, most mediators charge a small fortune. If you choose to pursue mediation then you will have to pay for two sets of lawyers and for the mediator legal fees as well. Mediators don't work for free, and they frequently stop working on the case if their bills are not paid. It is important to note that if you file a standard divorce case, then the court system will provide mediation as part of the process. If the parties can't settle their case after the ESP court date, then they must participate in a court ordered mediation program. The appointed mediator must provide the first two hours at no cost. However, in my experience the typical mediation legal bill is several thousand of dollars.
In some cases the mediation process works great. In other cases I have seen that it is not productive at all, and it simply costs the parties' thousands of dollars of extra litigation costs. The bottom line is that if the parties don't go into a mediation with the mind set to try to reach a settlement, then no mediator will be useful to them. In closing, some mediators are wizards and they can help the parties' settle their case. Alternatively, mediation can also be a waste of time, if the parties are intransigent, and if they don't negotiate in good faith.
What happens if I can work out an agreement with my souse, or if the mediation process fails?
If you and your spouse simply can't work out an agreement, then you will be required to have a trial. Having a divorce trial is a great way to go bankrupt. There is a tremendous amount of time and effort that goes into preparing for a divorce trial. Moreover, most trial dates are adjourned at least three or more times. Finally, trials are never conducted on a continuous basis. Usually, you only have about four to six hours of trial time per day. For the rest of the court day the judge has to attend to his other cases and emergent matters.
You also may be required to call an expert witness at your trial. You may be required to call an appraiser, an employment expert, a forensic accountant, or a police officer if there is domestic violence involved. These witnesses don't testify for free and you will have to pay them. Finally, there is a sizable amount of politics in the family court system. I can't really discuss this issue in depth. However, this could be a factor in many divorce cases.
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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