Many clients understandably want to know what actually happens during a divorce. Below is a helpful guide to the various stages of a divorce. Of course, no two cases are the same, and these procedures may vary slightly from county to county, but this guide provides a general overview of what you can expect as you go through a divorce.
The Pleading Stage
Every divorce begins with the filing of a complaint for divorce. A complaint is a legal document that is filed with the court, which sets forth some basic facts about the parties marriage and the relief the filing party seeks.
Most people seek a divorce in New Jersey based on irreconcilable differences, which simply requires that the parties have had differences that have caused the breakdown of their marriage for a period of more than six months and there is no reasonable prospect of reconciliation.
Once the complaint is filed with the court, the complaint must then be served on the other spouse. The complaint can either be served informally, if the other spouse, or his or her attorney, is willing to except service, or must be served formally using a process server.
After the complaint is served on the other spouse, he or she has 35 days to file their own pleading with the court, called an answer and counterclaim. The answer simply provides responses to the allegations of the complaint and the counterclaim sets forth that spouse’s position with regard to the divorce.
Parenting Time Mediation and Case Management Conference
After the pleading stage is complete, couples with minor children are usually be scheduled to attend parenting mediation at the courthouse. During mediation, a mediator will work with the parties, without their attorneys, to try and develop a custody and parenting time schedule that works best for them. If the parties can agree, then the issue of custody and parenting time is generally resolved. If not, the issue will need to be dealt with as the divorce proceeds. In some cases, custody evaluators may need to be retained to assist the parties in reaching a resolution.
In addition, a case management conference will be held before the judge handling the case. The main purpose of the case management conference is to schedule dates for the matter going forward. Generally, substantive issues are not addressed at the case management conference.
Discovery
Discovery is the time during which the parties are able to ask questions and request documents from the other side. This process generally lasts about 2 to 4 months, but can last longer if there are certain complex issues that must be assessed. This is also the time where either or both parties can obtain experts to assess issues such as the valuation of businesses or to provide a custody assessment. The marital home, marital property and pensions can also be appraised during this time, as necessary.
Early Settlement Panel
Once discovery is completed, or close to being completed, the parties attend what is called an Early Settlement Panel. This is generally the first time in a case where the parties set forth their positions on the financial issues relevant to their divorce, such as alimony, child support, and the division of assets between them. Custody issues are not addressed at the Early Settlement Panel.
The Early Settlement Panel is held at court but not in front of the judge. Instead, the parties and their attorneys meet with two experienced family law attorneys who provide their time free of charge to provide the parties their opinions as to how the case might be settled. The panelists’ recommendations are not binding, but in some cases can be a helpful starting point for settlement negotiations.
Economic Mediation
Assuming the parties do not settle their case at the Early Settlement Panel, a date for economic mediation will be set. For economic mediation, the parties mutually select a mediator, who is generally an experienced family law attorney or even retired judge, to meet with them and their attorneys and attempt to reach a settlement.
If a settlement cannot be reached before the date for economic mediation, the parties and their attorneys meet for the mediation. The mediation process is a lot more involved than the Early Settlement Panel. Instead of just providing his or her opinion, the mediator will generally go back-and-forth between the two sides and try to bring them closer together to settle the case.
Nevertheless, any recommendations made by the mediator are not binding.
If the parties are unable to resolve their matter through the economic mediation, then a date is set for an intensive settlement conference.
Intensive Settlement Conference
Each judge handles Intensive Settlement Conferences slightly differently, but the general idea is that the parties and their attorneys meet in court and attempt to resolve the matter. Generally, the judge is available to meet with the attorneys and sometimes even with the parties to help them resolve their issues and avoid the time and expense of trial.
Trial
In the event after all the above attempts at settlement have been exhausted, the matter will have to proceed to a trial. During a trial, the parties have the ability to call witnesses and present documentary evidence to the court to prove their case.Experts may also be called as witnesses on issues such as business valuations and custody.
Following a trial, the judge will make a decision on all of the outstanding issues between the parties.
If either party is not satisfied by the judge’s decision, he or she can appeal the decision. An appeal is a very lengthy and costly process, which may take well over one year to resolve.
Given the uncertainty, emotional toll and financial toll of trial, the vast majority of divorces in New Jersey are settled before trial. Moreover, the parties are generally in a much better position than a court to understand their particular circumstances and reach a settlement that is in their best interest and in their children’s best interest.
Nevertheless, there are some cases that must be tried, and a good attorney should be preparing for trial from day one of a divorce.
Settlement
The parties are permitted to settle their case at any point during the divorce. If the parties are able to resolve their issues at any point before trial, or even in the midst of a trial, they are attorneys will prepare what is called a Marital Settlement Agreement (also known as a property settlement agreement), which sets forth the full and complete terms of their divorce.
On the day the parties are prepared to conclude their divorce, they attend court with their attorneys and briefly appear before the judge to finalize the divorce process. During this brief appearance, both of the parties testify that they have read and agree to the terms of the Marital Settlement Agreement, and that they have done so voluntarily. The judge does not read or make any findings as to the Marital Settlement Agreement. The judge simply ensures that both of the parties have read and understood the agreement and believe it is a fair and equitable resolution of the case under all the circumstances.
Following that, the judge grants the parties a divorce, and enters a final judgment of divorce, which incorporates the Marital Settlement Agreement.
In addition, either party is permitted to change their surname at the time of the divorce.
Post-Judgment
Even after the divorce is granted (either following a trial or as part of a settlement) it may be necessary to implement some of the terms of judgment or settlement. For example, property might need to be sold, parties might need to move, and other assets might need to be divided.
Contact a Central New Jersey Divorce Attorney
If you are contemplating a divorce or have been served with divorce papers, contact The Law Office of Steven M. Cytryn, LLC to schedule a consultation. Steven M. Cytryn is a central New Jersey divorce lawyer, who is well-equipped to guide you through the various stages of a divorce, and to fight for your rights along the way.
