“Love conquers all”. Or so the old saying goes. As nice as that sentiment sounds, it’s unfortunately not always true. If you or your spouse has decided to file for divorce, you know that all too well. Or will shortly.
The life to which you’ve grown accustomed will soon undergo major changes, for you, for your spouse and for any children of the household. Living arrangements will be altered, finances will be impacted and relationships will undergo transformations. How deeply all of these things will be effected will depend on a number of factors, not the least of which is whether the divorce is contested and, if so, with what degree of intensity.
The divorce process in NJ is pretty straightforward, but that doesn’t mean that it’s simple. It’s possible for you to handle your own divorce. It is usually not recommended, however, unless the divorce is amicable and both you and your spouse have agreed on the important matters of maintenance, spousal support/alimony, child custody and visitation rights and child support.
Before you decide whether to handle your own divorce or hire a qualified divorce attorney instead, a review of what you can expect from the divorce process in NJ is in order.
You must meet the residency requirements.
Either you or your spouse must have been resident in New Jersey for at least one year prior to the divorce filing (unless adultery is used as grounds for divorce). In a case where adultery is alleged, any period of residency prior to filing for divorce is adequate.
You must have sufficient grounds to file for divorce.
In New Jersey, the following are the only legal grounds upon which to end a marriage:
- When a spouse has left the matrimonial home for 12 or more months.
- Extreme Cruelty.
- Treatment of a spouse that endangers life or health or makes it unbearable to continue living together.
- Spouses living apart for more than 18 months.
- Addiction to drugs/habitual drunkenness.
- For 12 or more consecutive months after marriage and before divorce filing.
- Institutionalization for mental illness.
- For a period of at least 24 consecutive months after marriage and before divorce filing.
- For a period of at least 18 consecutive months after the date of marriage and before divorce filing.
- You are the victim of “deviant sexual conduct” by your spouse without your consent.
- Please see a lawyer for an explanation of what constitutes “deviant” sexual behavior.
- Irreconcilable differences.
- The marriage has broken down for at least 6 months as evidenced by the failure of the parties to get along.
Notice to the other side.
To begin the divorce process in NJ, a person seeking a divorce must give notice to the other side. If you have an attorney, this is done by way of a letter from your lawyer to the other spouse. In that letter, your lawyer advises your spouse that you have retained counsel in order to commence divorce proceedings. The lawyer also asks for contact information of your spouse’s lawyer.
Summons and Complaint.
If your spouse doesn’t respond to your attorney’s letter, the next step is for your attorney to file a Summons and Complaint and have it served on your spouse by the Sheriff’s Department or a process server. Once the Summons and Complaint has been filed and served, your spouse will have 35 days to file an answer and, if he or she so desires, file a counterclaim.
Answer and counterclaim.
If your spouse disagrees with your version of the facts or the stated grounds for divorce, he or she may file an answer and counterclaim. These give your spouse the means by which to tell his or her side of the story. When this happens, the divorce is considered “contested.”
If, on the other hand, your spouse agrees with the grounds for divorce and other facts your statement of claim asserts to be true and also does not dispute how the marital property is to be divided or have an issue with the amount of support, maintenance or how custody and visitation rights will be determined, the divorce is considered “uncontested” and can be finalized in a relatively short period of time.
What happens in the divorce process in NJ if the divorce is contested?
If there is a dispute about how the marital property is to be divided, whether spousal support or maintenance is expected or which parent should have custody and/or what visitation rights the non-custodial parent should have, the parties can attempt to negotiate a settlement of the issues. If an out-of-court settlement is not reached, the parties will then be required to participate in a series of court hearings at which the judge will determine the issues in dispute. At this point, you are literally throwing yourself “on the mercy of the court” and that’s not always a good situation to be in.
When you’re in the divorce process, it is in your best interest to avoid court hearings whenever possible.
First, both parties will incur legal fees if court hearing must take place. Secondly, conflict often clouds judgment, making it difficult to make decisions in the best interests of all parties impacted by the divorce. And last but not least, disputes about issues related to the divorce can turn very ugly and end up having a detrimental mental and emotional impact on everyone involved, including grandparents and step-siblings, for example.
The court may order one party in the divorce to pay the attorney fees of the other.
The judge will determine whether an award of attorney fees is appropriate under the specific circumstances of your case. Factors such as each party’s ability to pay, what relief has been requested and whether the conduct of the parties has been reasonable are among those the court will consider in deciding whether to award attorney fees to one party or the other. In the alternative, the judge may simply find that both parties should bear their own costs.
The divorce process in NJ can (and often does) present a difficult landscape for the parties to navigate. The law does not require that you be represented by an attorney. However, given both the complexity of most issues related to divorce and taking into account what is at stake for both spouses and other family members, you should consider meeting with a qualified New Jersey family law attorney to ensure that you are taking the steps necessary to preserve your interests and protect your rights.