Now that you have made the determination that you want to proceed with a divorce, you wonder what is/are the next steps. The following is a summary of the Procedural Steps in a Divorce Litigation and a summary of substantive issues that may be addressed in the divorce proceedings.
Procedural Steps for Divorce Litigation in New Jersey
1. The Filing of the Complaint: All divorce cases officially begin with the filing of a Complaint with the Family Court. The Complaint is the first pleading filed with the Court and it must be filed before any requests can be made to the Court such as requests for support or custody. There are filing fees associated with the filing of every Complaint.
2. After the Filing of the Complaint: Once the Complaint is filed, it is returned to your attorney, who serves it on the opposing party or the opposing attorney, if one has been retained. Service is usually accomplished by mailing the Complaint to the opposing attorney, along with an Acknowledgment of Service which they sign and return. You will also file an Affidavit of Insurance Coverage which states the types, extent and beneficiary of your insurance policies; in most cases, the party responsible for maintaining insurance coverage before the filing of the divorce complaint must continue to maintain that coverage unless a Court enters a different Order. After the service of a Divorce Complaint, you will be asked to fill out a “Case Information Statement” (“CIS”) which sets forth your personal and family assets, liabilities, income and expenses. In some cases, it may be appropriate to reflect past and/or projected expenses. It is extremely important that the CIS be as accurate and complete as possible because the Court and the attorneys will use the CIS throughout the case in assessing support and property distribution issues.
3. Motions to the Court: Once the Complaint is filed and served, you can proceed to Court on a Motion for an Order regarding those issues which need to be resolved pending the end of the case; these include interim custody, spousal and child support, restraints against asset dissipation, insurance coverage, payment of counsel fees, and payment of expert fees. In divorce cases, this is known as a “pendente lite Motion.” Some cases don’t require any pendente lite Motions while other cases may require numerous pendente lite Motions. A Motion is made up of Certifications (the same thing as an Affidavit) from yourself and the opposing party and oral argument by your attorney and the opposing attorney; sometimes, legal briefs are also filed with the Motion. If a true emergency exists, your attorney may recommend the filing of an “Order to Show Cause” which can be heard by the Court the same day as it is filed or shortly thereafter; however, there will thereafter be a “return date” for another oral argument to give the opposing party a chance to file papers and argue their side. If the matter is critical but not emergent, the Court may permit a Motion to be heard on “short notice” as opposed to waiting the usual four weeks or more. A matter must be truly emergent to be heard by way of an Order to Show Cause or Motion on Short Notice.
4. Alternatives to Motions: Not all cases require a pendente lite Motion. In some cases, the attorneys can work out the issues between themselves with their clients’ assistance. It is often better to reach an amicable resolution of your issues than to file a Motion, as it is generally less costly both in terms of fees and emotions.
5. The Discovery Phase: Once the pendente lite issues are worked out, the attorneys will exchange in “discovery.” The documents you may see during the discovery phase are Interrogatories (written questions for you to answer), Requests for Document Production and Expert Reports (in cases involving the valuation of assets, you will need to retain experts who will render an opinion to the Court as to the value of the assets in question; typical examples are real estate appraisers, pension appraisers and business appraisers.) In many cases, your attorney or the other attorney will want to conduct depositions; these are examinations in person under oath at which a Court Reporter takes down all of the questions and answers for later use in Court. Depositions may be taken of yourself, the opposing party, witnesses and experts.
6. Custody Cases: In most cases in which custody of children is at issue a “custody expert” will be necessary. This individual is a psychologist or psychiatrist who will interview the parties alone and with the children and will conduct a battery of psychological tests. The expert may also interview grandparents, teachers and significant others or new spouses. After the interviewing and testing is completed, the expert will render a report setting forth what custodial arrangement is in the best interests of the children.
7. Resolution of the Case: Within six months of the filing of the Complaint in some counties, and eight months or more in other counties, your case will be scheduled for either a “Matrimonial Early Settlement Panel” (“MESP”). The MESP is comprised of attorneys who have expertise in the Family Court and volunteer their time to assist the Court in resolving cases. Thereafter, there will be mandatory economic mediation. After the mediation, in many counties, there will be a settlement conference with the Judge (often called an Intensive Settlement Conference or "ISC"). Whether your case is scheduled for an MESP, mediation or a settlement conference with the Judge, your attorney should be prepared to discuss your position on all of the issues and try to settle them.
8. If an Amicable Resolution is not Possible: In some cases, a trial is necessary because the parties cannot reach an agreement. In those cases, the county in which your divorce has been filed will dictate how long it will take to get a trial date. In some counties, you will have a trial date within six weeks of the MESP or settlement conference; in other counties, you may wait much longer for a trial date. Trials in the Family Court are heard by a single judge, not a jury. The trial days are not always consecutive and you may only have on or two days of trial in any given month. Trials may drag out over months and months.
Substantive Issues in a Divorce Litigation
1. Equitable Distribution of Property: In the State of New Jersey, property (assets and debts of the marriage) is distributed “equitably.” This means that they are not always divided equally. Examples of assets and debts that may be unequally divided are: businesses in which one spouse is actively involved, real estate which was owned premaritally by one spouse, charge card debts run up by one spouse for his or her own use or defined benefit pensions that are being “offset” against other assets. Property acquired during the marriage which will be the subject of equitable distribution is generally property acquired from the date of the marriage up through the filing of the divorce complaint, although there are some exceptions to this general rule. Debts run up by a spouse before the filing of the divorce complaint are marital debts.
2. Custody: All issues regarding children are decided based upon the “best interests” of the child standard. In the State of New Jersey, the most common and preferred custodial designation is “Joint Custody” with one parent as the “Parent of Primary Residence” (“PPR”) and the other parent as the “Parent of Alternate Residence” (“PAR”). In most cases, children will attend school in the PPR’s school district. Joint custody does not refer to equal time sharing; it refers to mutual decision making, in which the parents are counted upon to discuss and arrive at a mutually acceptable resolution of the many major issues which arise during child rearing.
3. Child Support: Usually, child support is calculated pursuant to the New Jersey Child Support Guidelines. The Guidelines contain mandatory child support figures based upon the parents’ combined net income, and the average cost to raise children in the New Jersey, taking into consideration roof expenses, food expenses, personal expenses and other expenses. The amount of child support in Guidelines cases depends primarily upon the net incomes of the parents, the number of children for whom support is sought, the existence of children from subsequent or prior marriages and the number of overnights the child(ren) spends with each parent. All sources of income are included in the child support calculation. In addition to child support, the Court may require contributions towards work-related child care, unreimbursed medical expenses, private school and other miscellaneous recurring costs for the children. If the combined net income of both parents exceeds the Guidelines threshold amount, then there is a statute which governs the amount of child support in each case. Factors which are listed in that statute include: needs of the child; standard of living and economic circumstances of each parent; all sources of income and assets of each parent; earning ability of each parent; need and capacity of the child for education; age and health of the parents and child(ren); income, assets and earning ability of the child; responsibility of the parents for court-ordered support of others; reasonable debts and liabilities of each parent and child; and any other factors the court deems relevant.
4. Alimony: There are currently three types of common alimony awards in the State of New Jersey: permanent alimony, rehabilitative alimony, and limited duration alimony. Permanent alimony is payable unless or until the payee spouse remarries or dies or the payor dies (in which case there should be life insurance coverage). Rehabilitative alimony allows a payee spouse to return to school or a training program with the goal of eventually being financially independent of the payor spouse. Limited Duration alimony provides for an alimony payment of limited duration although the payee spouse is not attending school or otherwise rehabilitating himself or herself. In some cases, it may be appropriate two combined two of these types of alimony. Alimony is considered income to the payee spouse and a deduction to the payor spouse both for tax purposes and in calculating child support pursuant to the Guidelines. Therefore, when your attorneys is determining how much child support is payable in your case, he or she first needs to assess the alimony payment and then add or subtract that amount from your income to assess child support.
5. Counsel Fees. There are numerous situations in which your attorney may request that your counsel or expert fees be paid by the opposing party. Among others, these include cases in which the financial circumstances of the two parties are far apart and cases in which one party is acting unreasonably.
The above is a summary of the procedural steps and substantive issues addressed in divorce cases. Each case is different and the issues involved may be more complicated or more straightforward than others. Accordingly, the procedural steps necessary to get to the end of a divorce case may vary.