How does the contested divorce process work?

If you are not able to agree with your spouse and file an uncontested divorce, you will have to file for a contested divorce and step through the process. This process depends in large part on the actions of each spouse throughout the divorce, but below is a general description of each stage.

Filing Complaint for Divorce

A New Jersey Divorce starts with the filing of a Complaint for Divorce.  This stage is used by spouses to let each other and the Court know that that they want a divorce.  The State of New Jersey currently charges a filing fee of $250.00 plus an additional $25.00 if you have children.

Service of Summons and Complaint on Spouse

Once filed, the Complaint for Divorce must be served upon the spouse with a Summons.  In many instances, the spouse may simply acknowledge receipt of the summons and complaint by Acknowledgement of Service signed before a notary.  In other instances, the Summons and Complaint can be served by a sheriff’s officer or process server.  Upon service, the spouse has 35 days to file an answer, answer and counterclaim or an appearance.

Case Information Statements

The initial discovery stage is used to exchange basic financial information to help you understand the true financial condition of the marriage and how the property, financial accounts, and debts should be divided.

After the divorce complaint has been served, both spouses have 20 days under Rule 5:5-2 to exchange Case Information Statements (CIS). The Case Information Statement lists all assets, liabilities, income and expenses of the parties.  This mandatory disclosure is meant to place both spouses on the same information level.

Discovery

After the mandatory disclosure exchange, an initial group of discovery requests will normally be exchanged, including: requests for production of documents, requests for interrogatories (written questions), and requests for expert interrogatories.  A Notice to Produce can also be served on the other party, requiring the submission of documents such as tax returns, bank statements, credit card bills and other relevant documents.  Sometimes, there are also “Depositions,” where you answer the other attorney’s questions under oath, prior to trial.  Also, expert reports and appraisals, among other things, can also be part of the discovery process.  The discovery period usually last between 90 and 150 days.

The Early Settlement Panel

The court schedules the case for an Early Settlement Panel in approximately 6 to 7 months from the filing of the complaint for divorce. The panel consists of 2 or 3 experienced matrimonial attorneys who volunteer their time to help the court in settling divorce cases. Early Settlement Panel Statements must be submitted prior to the Early Settlement Panel date, detailing each party’s respective position with regard to all of the issues in the case.  The purpose of the Early Settlement Panel is to give each party an unbiased opinion about settlement issues.  Often, the attorneys and the parties spend the better portion of the day in the courthouse hallway negotiating a settlement agreement.

The parties and their attorneys proceed to non-binding arbitration with the Early Settlement Panel. The Panel reviews the Early Settlement Panel Statements and hears the argument of counsel as well as the opinions of the spouses. It then makes a settlement recommendation. Most divorce cases are settled prior to trial, and the Early Settlement Panel can be helpful in presenting an independent, unbiased voice to the litigants as to a possible resolution of the various issues presented.

The Early Settlement Panel does not typically review issues of custody.  Should the parties be unable to resolve these issues between themselves, they may be required to attend court-ordered custody/visitation mediation. This is a program provided by the county, free of charge, which attempts to resolve all such issues without the necessity of litigation.

Temporary Orders – Pendente Lite Motions (Motions Before the Divorce Trial):

The first time you will normally appear in Court before a Judge is for a temporary order hearing. A temporary order hearing is scheduled after one of the spouses files a motion for temporary orders asking the Court to issue orders regarding financial support, parenting plans, and other concerns.  For example, one party may ask for a temporary support order as well as the payment of certain household expenses while the case proceeds. The court will attempt to maintain the status quo during the divorce to insure that the parties’ expenses are being paid and that the mortgage, utilities, insurance costs and car payments are not being neglected.

Either spouse can file a motion for temporary orders at any time, but this normally happens within the relatively early into the case – about the first 3 months. It is important to note that while Judges do not generally change their temporary orders, they will consider doing so if there is a substantial change since the initial temporary orders were entered.

The Court may Order the litigants to participated in Economic Mediation and appear at the court for settlement conferences.  If the issues are not resolved, the parties must submit and file a pre-trial memorandum with the Court. During the pre-trial conference, the Judge will read through both pre-trial memoranda and try to help the spouses come to an agreement and a complete settlement. If you are not able to agree, the Judge will limit the issues in dispute, schedule a trial date, and issue a pre-trial order which provides important dates and requirements for the upcoming trial.

Trial Preparation:

It is important to note that almost all cases settle during the pretrial conference and 98% of all contested divorces settle before the final trial. While it is almost a statistical guarantee that your case will settle before trial, you still must fully prepare. Nothing convinces the other side to settle more than showing you are ready and willing to go to trial with strong arguments and positions.

The time between the pre-trial conference and trial is spent finalizing your evidence and arguments. During this time, you will normally send out a follow-up round of discovery requests and use the evidence you have to conduct depositions. You will also communicate on a weekly basis with your attorney to fine-tune your strategy and prepare for your trial testimony.

Trial:

The purpose of trial is to help the Judge understand the important facts of your case so they can make a final decision on any issues you cannot agree. The Judge learns these facts by listening to the spoken testimony of witnesses and by reviewing documents provided as evidence. This process can take anywhere from several hours up to multiple days.

While trials are highly technical and complicated, your only job at this time is to focus on your testimony and clearly articulating the information you need to communicate to the Judge. As your attorneys, we will take care of the procedural and evidentiary nuances.

For an overview, the trial starts with both attorneys making a brief statement to the Judge regarding what facts they expect to present during the trial and how they would like the Judge to rule on the ultimate issues after the trial is complete. After opening statements, the attorneys will call witnesses for testimony. During the witness’ testimony, each attorney will have a chance to ask questions and provide the Judge with helpful documents.

After all of the witnesses have testified, each attorney will have the opportunity to make a final brief statement to the Judge. In this closing statement, the attorneys will summarize for the Judge the important facts that came out during the trial and explain why the Judge should rule a certain way based on these facts.

Post-Trial:

After the trial, we file comprehensive proposed findings of fact and rulings of law based on the evidence and testimony that came out during the trial. The Judge will use these findings to draft and issue a final judgment. Judges have been known to take anywhere from a single day up to 6 months to complete the final judgment depending on the complexity of the case and the Judge’s personal schedule.

After the judgment is complete, there are appeal options available if you are not satisfied with the outcome. These options can be highly technical and dependant on the specific facts of your case. We will work with you to advise you of all your legal options and help you make the best decision going forward.

If you are considering divorce, contact Marc P. Feldman to learn more about your options and how I can help.

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