Every state has its own law regarding divorce. Although there are differences, many states’ divorce laws are similar to each other. The process of going through a divorce can be confusing and complicated to those who are not attorneys and unfamiliar with the court system and legal terminology.
I practice law in New Jersey and so this article will cover the New Jersey process of divorce. However, even if you live in another state, this article will be useful because there is a good chance the process is pretty similar in your state. But, always do your own research and find out the exact process of going through a divorce in your particular state. This is an overview of how it works in New Jersey:
File the Complaint For Divorce. This is technically the first document to officially start the divorce process. The first person to file the Complaint is called the Plaintiff and the other party is then the Defendant. It doesn’t matter which one you are and there is no advantage to being the Plaintiff in a divorce. The one thing to keep in mind about the Complaint is that as soon as it’s filed, you are on the court’s radar and will be pushed through the process whether you’re ready or not. TIP: You don’t have to file a Complaint to start negotiating the divorce.
Case Management Conference. One of the first steps is to have a conference with the court, attorneys and the parties at which time the Judge gets to meet everyone and a chance to take the temperature of the case. The main goal is to address any major issues and make deadlines for the rest of the process so everyone knows what to expect and when things have to be done, such as discovery. For example, if there needs to be any custody or forensic evaluations, this is the time to bring it to the court’s attention so proper planning can be schedule.
Discovery Period. Discovery is the exchange of information by both sides. This includes exchanging statements from financial accounts, retirement accounts, credit cards, personal property and more. This is the longest part of the process. The point is to put all the marital assets on the table so both parties and the court knows how many assets to allocate. Any evaluations or use of experts are done during the discovery period.
Motions. From the point a Complaint is filed until the divorce is over, either party may file a motion seeking relief from the court. A motion is a written document prepared for the court that outlines what relief a litigant wants. For example, certain issues may come up at any time, including parenting time or custody issues, or financial issues where one party requests financial support from the other party. If you have an attorney, motions can be expensive (thousands of dollars) so think hard before you file one. Sometimes, issues can be resolved without the need to file a motion, but sometimes you just need to file one because the other side is being unreasonable and not cooperating.
Early Settlement Panel (ESP). Towards the end of the discovery period the court (in New Jersey) will schedule an ESP hearing. This is a hearing where both sides show up and present their case to a panel of two or three experienced volunteer matrimonial attorneys. This is a court-mandated program meant to promote settlement. The panel of volunteer attorneys offers their opinion on how the case should be settled and how the assets should be distributed fairly. The process is non-binding, meaning if one or both parties don’t agree with the panel’s recommendations, they don’t have to abide them.
Mediation. The court wants to encourage every case to settle, as opposed to go through a trial. A trial takes up the court’s resources, time and is the most expensive option to resolve a divorce. Plus, you are leaving the Judge to decide who gets what and most of the time, neither party is happy with the result. That’s why part of the process is attempting, in good faith, to mediate. The parties agree on a neutral mediator (often an attorney or retired Judge) whose job it is to help the parties agree on a settlement. The mediator has no authority to order anything or make any rulings. This process is non-binding and neither party has to agree with the mediator’s recommendations. Many cases settle during this phase of the process.
Settlement negotiations. At any point during the process the parties may engage in settlement negotiations. You don’t need the court’s permission and often the court expects this will happen on its own. Typically, settlement talks don’t get serious until the end of discovery, once both sides know what assets need to be distributed. Negotiation of a divorce is a process within itself. It rarely happens in one day. Sometimes, if the parties are close, they can enlist the help of the Judge and have an informal conference where the Judge helps bridge the gap and settle the case. In New Jersey, this is called an Intensive Settlement Conference. It can last all day, or be multiple days. It’s the last opportunity before trial for the parties to settle.
Trial. The last stop on the divorce train. I can’t say you are lucky if you get this far…that’s not how it works. If you go to trial, that means you have spent a great deal of time and money to get nowhere. It may not be your fault. I always tell clients, it takes two to settle a case. But, sometimes you try to be reasonable and the other side just refuses. After all, that’s why we have the courts, right? Here, the Judge decides your fate and the only thing you can do if you don’t like the ruling is appeal, which is another long and expensive process. This is not where you want to find yourself, but sometimes you have no choice.
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