The Divorce Process: A Step by Step Summary

The Divorce Process: A Step by Step Summary

Every divorce is different. Some are simple and inexpensive. Some divorces involve complex assets. Some cases become contentious because of issues involving support, custody, property valuations, and other issues.

Because each divorce is different, following is summary of steps that may take place in your case. This summary is not intended to be all inclusive or to deal with every situation that may arise. You should speak with your attorney for legal advice specific to your situation.

The divorce process summary may also be download as a PDF document.

Step 1. Initial Consultation
Step 2. Retaining an Attorney
Step 3. Initial Information Gathering and Decision Making
Step 4. Filing or Defending a Dissolution Proceeding
Step 5. Engagement of Experts
Step 6. Temporary Relief Hearing
Step 7. Parenting Class
Step 8. Discovery
Step 9. Motions and Contempt Hearings
Step 10. Substantive Law
Step 11. Length of Case
Step 12. Settlement and Mediation
Step 13. Status, Pretrial and Final Hearings
Step 14. Appeals
Step 15. Clean Up and Implementation
Step 16. Enforcement
Step 17. Modification
Step 18. Attorney Fees and Costs

Step 1.      Initial Consultation

I will have an initial meeting to discuss your case. My communications are confidential and may not be disclosed without your consent. The selection of a lawyer is a highly personal matter. I encourage you to ask any questions about the way in which I represent my clients or my qualifications. After I discuss with you the facts, law, and issues in your case, I encourage you to carefully consider whether I am a good fit for your needs. I want to ensure that we are partners in resolving your case.

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Step 2.      Retaining an Attorney

Before the firm represents you, I will ask that you sign a contract, which will set forth our responsibilities to you, and your responsibilities to us. I will also ask that you pay a retainer to the firm. I will use your retainer to pay costs associated with your divorce, and to pay for the time I spend working on your case.

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Step 3.      Initial Information Gathering and Decision Making

Within a few weeks of our first meeting with you, I will attempt to gather as much information as possible and to make the major decisions on how the case will be handled. This stage of our involvement is very important. Your cooperation is indispensable. Lawyers are sometimes referred to as “brick masons” — we build the walls, but you supply the bricks.

You will be asked to fill out an information form to provide basic information (names, addresses, etc.), which will be used later on in the case to prepare letters, pleadings (documents that are filed with the court), agreements, and the like. It is important that you be accurate with names, spellings, and dates.

Later, you may be asked to provide more detailed information and complete more forms, such as a Case Information Statement (CIS), which summarizes your income, expenses, assets and liabilities. It is critical that these documents be completed accurately, as they will be relied on by your attorney and the court.

I may also provide you with a list of documents that you will be required to gather. Opposing counsel may also request documents. If you receive such a request, I will discuss that as well.

It is my goal within the first few weeks of your case to have sufficient information and documentation to make major decisions as to how your case should be handled. This means, for instance, whether or not settlement proposals will be made, what relief will be sought, and what I hope to accomplish overall in my representation of you. These goals may change as I move forward and become more educated as to the facts and law that apply to your case.

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Step 4.    Filing or Defending a Dissolution Proceeding

Family law related matters are heard and determined in the Superior Court of New Jersey. There is a Family Law Division in almost every county of our state. Your case will be assigned to one judge, who will make every decision that has to be made by the court in your case.

The case must be initiated by a Summons and Complaint for Divorce. The Summons is the document that gives your spouse notice that he or she will have 35 days in which to file and serve responsive pleadings, such as an Answer or Counterclaim for Divorce. The Complaint sets forth the factual and legal basis for your claims.

The Complaint, once approved by you, is then filed in the clerk’s office of the Superior Court of New Jersey in the county where the action will be litigated. A filing fee is required. Upon filing, a docket number is assigned to your case and must be written on all pleadings and motions filed with the court thereafter.

Your spouse must then be personally served with the Summons and Complaint. Service for my office is typically done by a private process server, but can be done by the Sheriff of the County where your spouse resides. In some cases, your spouse may sign a document called an Acknowledgement of Service, which is a substitute for personal service.

Once your spouse is served, he or she will have 35 days in which to file an Answer or Counterclaim for Divorce. The Answer or Counterclaim sets forth the facts and law upon which your spouse will rely in defending against our lawsuit. If your spouse’s lawyer has already prepared the Complaint, we will prepare an Answer or Counterclaim for Divorce. After you have approved the Answer or Counterclaim, I will file it with the court. A filing fee or “first appearance” fee is required.

In addition to the Summons, Complaint, Answer, and Counterclaim, other Motions may be filed from time to time. Examples are as follows:

  • (a)    Motion to Dismiss: A Motion to Dismiss is generally addressed to a Complaint or Answer and Counterclaim. It challenges the legal sufficiency of those pleadings. In other words, even if the facts set forth in the particular pleadings are true, a Motion to Dismiss generally contends that the relief requested cannot be granted for one legal reason or another.
  • (b)    Motion to Make More Definite and Certain:    I sometimes file a Motion to Make More Definite and Certain in order to determine specifically what form of relief the petitioner seeks. For example, if the Complaint asks for spousal support without specifying the type, I may file a Motion to Make More Definite and Certain to ask which form of support is sought – permanent alimony, rehabilitative alimony, limited duration alimony, and reimbursement alimony. The ultimate purpose of a Motion to Make More Definite and Certain is to enable us to better prepare our case.
  • (c)    Motion for a Custody and Parenting Time Evaluation: Sometimes, when parties have serious disputes about legal custody and parenting time, either party may move the court for an order appointing a qualified professional to evaluate the family and make recommendations regarding legal custody and parenting time. The evaluation process usually involves interviews with the parties, contact with the children, psychological testing, and the gathering of other information. Evaluations can be daunting. I will work with you to prepare for an evaluation, so that you can be the best possible advocate for your children’s best interests.
  • (d)    Motion for Appointment of Attorney for Minor Children: In addition to asking for custody and parenting evaluations, an attorney may be appointed for minor children.  As minors, children cannot make legal decisions themselves. During the case, the children’s attorney makes decisions for the children, may testify on behalf of the children, and may ask questions of you, your spouse and the witnesses, in and outside of the courtroom. The children’s attorney may also make recommendations on issues such as custody, visitation, and child support.  The children’s attorney’s role is very important and can be determinative of the outcome of your custody case.
  • (e)    There are other motions I may file on your behalf, such as a motion for temporary relief and a motion to compel production of documents. Those and other motions will be discussed in more detail later in this summary.

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Step 5.      Engagement of Experts

In many instances, it is practically impossible to settle or litigate a dissolution case without the assistance of experts. If you case warrants the engagement of an expert, I will generally advise you to do so.

When financial issues are at stake, I generally advise that you hire a financial expert with experience in the dissolution setting. Experts are generally used in dissolution cases to value businesses and professional practices, to ascertain and determine incomes and cash flows, to trace property and investments, to give tax advice, and to otherwise assist with the financial aspects of the case.

Where there is a dispute as to property values, I generally advise that real estate appraisers and personal property appraisers be hired to appraise the real estate and personal property that will be at issue in the case. Again, I prefer to hire appraisers who have experience in court and whose opinion is respected by other attorneys and by judges. The case law governing family law matters requires that competent evidence be presented to the court. In the absence of adequate proof from you, the judge is at liberty to accept the values put forth by your adversary, which most likely will not be to your benefit.

When serious issues of child custody or visitation are raised, I generally recommend that an experienced clinical psychologist be hired to evaluate the family and to assist in making the child custody and visitation decisions. I also recommend using clinical psychologists to work through custody and visitation problems, which may defuse the contested nature of those issues. The court may also order such an evaluation.

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Step 6.      Temporary Relief Hearing

Sometimes it is necessary at the beginning of the case to ask the court to make orders for temporary relief during the pendency of the case. Such relief may include, among other things, temporary spousal or child support, temporary exclusive use of the family home, temporary custody of minor children, payment of monthly bills, and payment of attorney fees, and “suit money,” to assist you in retaining experts to help with your case.

A hearing for temporary relief may be ordered on the motion of a party. If at all possible, it is generally best to attempt to resolve these temporary issues without a hearing.

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Step 7.      Parenting Class

Under New Jersey law, if you have minor children, both parents are required to attend a parenting class before the divorce can be finalized. Sometimes, it is helpful for both parents to attend the class at the same time, as the class provides good information about how to get through the divorce process with as little negative impact on the children as possible.

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Step 8.      Discovery

The exchange of information in a divorce, including documents that are related to income, expenses, assets (including inheritances, real property, and business assets), and liabilities, is called “discovery.” The purpose of discovery is to find out the key points and elements of your spouse’s case and to help you and the court reach a fair and equitable result in your divorce. Further, under New Jersey law, if a party fails to disclose a significant asset that existed at the time of the divorce, the divorce case may be reopened. Moreover, many discovery responses are admissible in evidence at hearings in your case. Therefore, the discovery process should be taken very seriously.

Discovery is generally necessary whether the case is settled or litigated. In order to properly settle the case, I must have a general awareness of the facts involved in your case, particularly the financial facts. If the case is to be litigated, discovery is necessary in order to properly prepare and present the case at a final hearing. Dissolution cases are not necessarily won by who is right but, rather, are oftentimes won by the party who is better prepared.

Formal discovery under the New Jersey Rules of Civil Procedure (Rules) generally consists of the following:

  • (a)    Depositions on Oral Examination: Depositions on oral examination are typically taken at one of the attorney’s offices in the presence of a court reporter and while the deponent is under oath. You and your spouse have the right to be present. We prefer you to be present. The attorneys will ask questions at the deposition and the witness will give answers under oath. Depositions may be taken of you, your spouse, and any other parties involved in the case. Depositions are usually expensive because both parties are represented by attorneys, and the court reporter will take down and transcribe all of what is said. Court reporters generally charge by the page, plus an appearance fee. It is not unusual for a deposition to run more than a hundred pages.
  • (b)     Production Requests:    Production requests enable me to require the production of documents and other tangible things that are pertinent to your case. This would typically involve tax returns, appraisals, financial statements, bank records, medical records, and other such documents.
  • (c)     Subpoenas:     Sometimes I issue subpoenas to banks or other financial institutions to gain access to records that are relevant to the case but that are not easily available to either party.
  • (d)    Motion to Compel:    If your spouse does not produce documents we request that are in his or her possession or control, the Rules allow me to seek a court order requiring your spouse to produce the documents.
  • (e)    Requests to Admit:    The Rules allow for me to present statements of fact and law to your opponent, and request that they either admit or deny those statements. If admitted, that eliminates the need for further proof on that issue.

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Step 9.  Motions and Contempt Hearings

Once the case is filed in the Superior Court of New Jersey, there will typically be motions as have been discussed above. Motions for contempt or motions to compel discovery are also typical. Contempt matters generally involve enforcement of prior court-approved agreements or orders, such as an order for payment of temporary child or spousal support. Superior Court judgments and orders should be treated very seriously. The penalties involved in failure to comply with these documents can be substantial and may even include jail time. As previously noted, motions to compel discovery are brought when information has been requested but not provided, or when a party refuses to cooperate with attempts to gain information.

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Step 10.  Substantive Law

In New Jersey, the practice of Family Law is governed by a large body of case law (decided by our courts, the Supreme Court of New Jersey and the Appellate Division of the Superior Court of New Jersey), statutes (created by our legislature), Court Rules (promulgated by our Supreme Court), and administrative rules.

The law governing domestic relations is an ever-changing body of law. I attempt to keep myself apprised of these changes as they are made.

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Step 11.  Length of Case

Typically, dissolution cases may take six to 12 months to complete, with some exceptions.

The time it takes to complete your case will depend on several factors, many of which are not within my control or your control. It will depend in large part upon the issues that you and your spouse chose to contest. The more issues, and the greater complexity, the longer the case will take to complete.

I encourage you to attempt to reach agreement on as many issues as possible. The process of fully litigating each issue can be very lengthy and expensive and should be reserved for only those issues about which there are significant disagreements.

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Step 12.  Settlement and Mediation

As attorneys in the matrimonial field, my first efforts are always directed to determine if a possibility of reconciliation exists. Only when you are satisfied that no such possibility exists do I attempt to move forward. Only clients who are certain that their marital relationship is over should proceed with a dissolution action. Dissolution cases always impacts families. They are emotionally draining and expensive. Dissolution of marriage should be obtained only as a matter of last resort. I can provide you the names of qualified counselors and mediators who may be able to assist you in avoiding a divorce.

When you are certain that no possibility of reconciliation exists, then and only then do I move forward. The disputes that you have with your spouse will either be concluded by a written agreement or by the court making the decisions for you and your spouse regarding, among other things, child custody, child visitation, child support, spousal support, property and debt division, tax matters, and attorney fees.

Under New Jersey law, marital differences can be resolved by a written Settlement Agreement.  In order for such an agreement to be valid, it must be signed by both parties, each of whom should be represented by separate counsel, entered into after full financial disclosure, freely and voluntarily and without duress, coercion, and overreaching. Parties can also agree to settle their disputes “on the record,” before a judge. If the judge approves the agreement, we would then prepare a judgment that conforms to the agreement, which would then be presented to the judge for signature.

If you and your spouse are not able to resolve issues, I generally recommend mediation as an efficient and fair way to resolve those issues without litigation. Mediators are impartial persons, who specialize in helping parties reach an agreement and resolve all or some issues of their case. Mediators cannot force people to reach a settlement, or impose terms of settlement. In mediation, you will have a degree of control over the outcome that you will not have in court.

In order to reach a global settlement, there must be an open exchange of financial information so that both parties are sufficiently aware of all income, debts, and assets involved in the case. It is usually very helpful to have a Certified Public Accountant assist in that financial disclosure and with the analysis of the information provided and of the offers and counter-offers that are typically made.

Settlement is preferred over litigated results as a settlement is generally less expensive to achieve from a fee and cost standpoint, and also provides certainty. It has been said that you and your spouse may resolve your differences with surgical precision, but a judge will use a meat axe.

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Step 13.  Status, Pretrial and Final Hearings

The court may schedule a status conference or pretrial hearing. The purpose of the status conference or pretrial hearing is to make sure that the case is ready for trial and that all reasonable efforts have been exhausted to settle the issues that are otherwise to be determined by the court. A status conference is more informal than a pretrial hearing.

Some final hearings last only two to three hours. Others last three or more days. Typically, a fully contested dissolution case will take one to three days of trial time to complete on the merits. When the issue of custody is also contested, that generally will enlarge the time of trial by one or more days.

Once the court’s decision has been rendered, one or both of the lawyers will be requested to draft a judgment for the judge’s signature. The judgment will set forth the court’s findings and rulings on the issues.

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Step 14.  Appeals

Within 45 days of the court issuing its final judgment in the matter, you have the right to appeal. That appeal is initially made to the Superior Court of New Jersey, Appellate Division. The appeal process involves securing transcripts of all of the proceedings in the Superior Court, Family Part and copies of the exhibits and having all of the pertinent portions of the lower court records presented to the appellate court. That becomes the Record on Appeal.

Once the Record on Appeal is completed, the spouse who appeals must present a written Brief. These Briefs set forth your legal position on the facts and law as they apply to your case.

After the Record on Appeal and Briefs has been completed, the appellate court may then set the case for oral argument. In the Court of Appeals, oral argument takes place before a two or three judge panel.

The appellate court then issues its decision, which it may do by published or unpublished opinion. Typically, that opinion will affirm, reverse, or reverse in part and affirm in part. A party may then petition for Supreme Court review of the Court of Appeals’ decision. Supreme Court review is at the discretion of that court and very few cases are taken by the Supreme Court for review.

If the case is affirmed on appeal, then the trial court judgment will become the final judgment in this case and will be implemented.

If the trial court judgment is reversed or modified, the appellate court can direct specifically how the judgment is to be modified, or it may remand the case to the trial court for further proceedings consistent with the appellate court’s opinion.

Appeals are generally considered expensive for many reasons. You must order and pay for transcripts of the lower court proceedings, which must then be assembled and duplicated in order to become the Record on Appeal. The briefs involved in appeal are labor intensive and take many lawyer hours to complete. Appeals should be taken only when you are truly aggrieved by the lower court’s decision and the economics of the situation justifying the cost. In addition, in New Jersey it may take many months, at times even years, for a decision on appeal to be made.

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Step 15.  Clean Up and Implementation

When your case has been settled by agreement or litigated to a conclusion through the court, I then may work with you in an attempt to bring closure to the case by writing letters detailing who is to do what and making sure that appropriate deeds have been completed and recorded, Qualified Domestic Relations Orders (which are required to divide certain kinds of retirement accounts) are appropriately transmitted dividing retirement plans, and important discovery papers are returned to the you.

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Step 16.  Enforcement

After the case is completed, there may come a time when your spouse does not do what has been agreed or ordered. If that is the case, I generally will request compliance on your behalf, if you ask me to do so. I will then bring an appropriate contempt action in the Superior Court, as discussed above.

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Step 17.  Modification

In certain instances, the Superior Court can modify prior agreements and judgments that involve spousal support, child support and related issues, custody, and parenting time. Generally speaking, other matters relating to the dissolution, such as property division, are not subject to modification.

It is my advice to do what you want to do the first time around. It is much easier to get the job done in the first instance, rather than to come back later and attempt to change a prior agreement or judgment. The burdens are much greater after the fact.

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Step 18.  Attorney Fees and Costs

After we have some general idea of what you would like us to do on your behalf, we will discuss the issues of fees and costs. You and the attorney who will be primarily responsible for your case will sign a written fee agreement. That fee agreement will generally provide for a retainer, against which we will bill at our prevailing hourly rates, plus costs, as detailed in the attorney client agreement.

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