A very nice woman, frightened out of her mind, hired me recently.
She told me how she had been informed by an email from her husband's lawyer an hour earlier that her divorce case was scheduled for TRIAL in 2 days, gave her the address of the courthouse, but told her that she really didn't need to appear in Court.That is not the way it is supposed to work.
After listening to her tell her panicked story, I told her that SHE WAS NOT PROPERLY SERVED with NJ Divorce Papers and that I would take care of it for her.
We fixed the problem for her. She's fine now.
She calmed down.
I then told her how the system is supposed to work.
Afterwards, I thought that it might be helpful if I would repeat what I told her here to help others understand the New Jersey divorce process.
So, here's an overview of how the NJ divorce process is generally supposed to work (for details and some great divorce stories, check out my NJ DIVORCE EDGE 2023 course.)
DIVORCE BEGINS WITH MARRIAGE
People get married.
They're not happy any more.
They often go to MARRIAGE COUNSELING. If it works, then that is the end of it.
If it doesn't work, one of them might consult with a DIVORCE LAWYER LIKE ME.
When somebody consults with me, I discuss with them the potential benefits of marriage counseling.
Sometimes I am able to help them save their marriage.
This gives me great personal satisfaction.
Other times they tell me that they have tried marriage counselling repeatedly and no longer wish to try, but instead they want to hire me to represent them in a divorce.
THE FIRST LETTER
When that happens, I usually start the case by writing a letter to the spouse. Let's assume for purposes of this article that I have just been retained to represent the husband.
While these letters are always customized to the new client's personal situation, it often says something like:
"Dear Ms. Jones:
Please be advised that your husband, Robert, has retained my office regarding certain marital difficulties that have developed.
Robert has made it clear to me that he would like to maintain things on an amicable basis with you.
With that goal in mind, please take this letter to an attorney of your choosing and have that attorney communicate with me so that we can begin to discuss the issues in dispute.
If you don't plan on having an attorney, please communicate with me yourself in writing, as I will only communicate with an unrepresented person in writing, and let me know your intentions.
If I don't hear from someone within the next 7 to 10 days, I will assume that you are not planning on answering this letter and I will instruct my client as to his rights to file a Complaint for Divorce.
We look forward to working with you toward a speedy and amicable resolution of all outstanding issues. Thank you very much. Very truly yours."
We then send the letter off, and we usually hear from a lawyer within a week to 10 days.
THE SECOND LETTER
However, if 10 days go by and we don't hear from somebody, we usually send a follow-up letter that reads something like this:
"Dear Ms. Jones,
As you know, I wrote to you on August 1, 2019 (additional copy attached).
In that letter I advised you that I had been retained to represent your husband, Robert, regarding certain marital difficulties that had developed.
I asked you to have your attorney contact me within 7 to 10 days so that we could attempt to work things out amicably.
I never heard from your attorney nor did I hear from you.
I am sending you this follow-up letter as a courtesy.
May I please hear from your attorney within the next 5 days?"
Normally, if the first letter didn't get them to take things seriously and hire counsel, the second letter will.
FILING FOR DIVORCE
However, if the second letter doesn't do it, I bring my client in and I say, "Look, Robert, it sounds like your wife doesn't want to cooperate.
Since we are not likely to get voluntary cooperation from your wife, would you like to consider having me prepare a divorce complaint?"
My client would then need to make a decision as to whether he is prepared to file for divorce now or whether he would prefer to sit back and give his wife more time to respond to my letters.
If he chooses to go forward with a Court action for divorce, the first step is to prepare what is known as a "Complaint for Divorce."
While there are several different GROUNDS FOR DIVORCE IN NEW JERSEY, since January 1, 2007 when a new option was enacted into law, we've filed almost all of our nj divorce complaints based upon the grounds of "Irreconcilable Differences".
Because it's gentle.
You don't have to accuse her of anything. She doesn't have to accuse you of anything. It doesn't have to get nasty from day one. We're not hanging your dirty laundry out for the whole world to see and perhaps gossip about.
The "irreconcilable differences" divorce complaint says basically, "Judge, she grew this way; I grew that way. Please grant us a divorce because we have differences that cannot be fixed; indeed, they are irreconcilable."
Sometimes during this discussion about choosing the grounds for divorce to pursue, the client gets frustrated at me and says something like, "But she screwed the mailman! I want to go after her for adultery!"
I say, "Well you could do that, but if you file a complaint for divorce based on adultery, she's likely to deny your allegation that she had sex with the mailman, and she's going to accuse you of perhaps "extreme cruelty," give a laundry list of all of the supposedly "extremely cruel" things that you supposedly did to her during the marriage, and all you're going to be doing is paying lawyers a lot of money to fight over nonsense.
Unless the conduct is way beyond normal marital bickering that infects many if not most marriages, the judge normally doesn't care who is doing what to who. A judge cares about two things: dollars and cents, and your children.
So, please reconsider when I say that we should file for divorce based on 'irreconcilable differences."
At this point in the conversation, most of the time my new divorce client will say, "Okay I will take your advice and file for divorce based on irreconcilable differences."
We prepare and then immediately file the divorce complaint with the NJ Family Court. There's a certification that goes with it where you swear that you didn't cancel any insurances out of vindictiveness toward your spouse in the last 6 months.
You have to pay a filing fee. If you have children, it's $325.00. It's a $300.00 filing fee for the complaint and $25.00 for a court program that teaches you how to not screw up your kids during your divorce.
We send it off to the Court. It takes them a week or so. They put a docket number on it, a case number, and they mail it back to me.
The other side, at this early point in the case, all they know is that I sent them two letters that they have chosen to ignore. They don't know that I've filed for divorce yet.
SERVING THE DIVORCE COMPLAINT UPON THE SPOUSE
But once I've got the divorce complaint with a docket number on it back from the Court, I HIRE A PROFESSIONAL PROCESS SERVER and I pay this person to locate Ms. Jones and personally hand the papers to her.
Ms. Jones is at Wegmans shopping. An unknown man comes up to her and asks, "Are you Ms. Jones?"
"Yes, I am. Who are you?"
"It doesn't matter who I am. Here, you've been served with divorce papers."
Ms. Jones either takes them or she drops them on the floor and says, "I'm not going to take those."
Either way, under NJ divorce law, Ms. Jones still has been legally served with a summons and a complaint for divorce.
Now the process server fills out a form, gives it to me, and I send it in to the Court as proof that Ms. Jones has been properly served with a NJ Summons and Complaint for divorce.
Now the clock starts to tick. Ms. Jones has 35 days from the time that the process server says that he handed the papers to her to file a response.
THE REQUEST TO ENTER DEFAULT
If on the 36th day she has not filed a response, I file papers with the court called a "Request to Enter Default."
It basically means, "Judge, here's proof from the independent, neutral process server that Ms. Jones was served on August 26, 2019. She's entitled to 35 days to hire a lawyer and answer.
It's now the 36th day. She's out of time. Please enter default against her," meaning basically "Judge, please metaphorically slap her on the wrist and schedule the case for an uncontested divorce hearing."
The Court will then enter default against her, meaning that the judge signs a piece a paper saying that she's had her 35 days but she didn't answer. She's "defaulted."
They give me a default trial date and schedule an UNCONTESTED DIVORCE hearing.
Now, as the lawyer for the husband, Robert, I have to write another document to the wife. That document is called a "Notice of Proposed Final Judgment." It would say something like:
"Dear Ms. Jones, as you know I wrote to you back on August 1, 2019 telling you that I represent your husband. You have not responded to that letter.
I wrote to you for a second time 10 days later; you ignored that letter also.
My process server served you with a divorce complaint on August 26, 2019. You had 35 days to answer. You've ignored that also.
I've asked that default be entered against you. The judge has entered default, meaning that you're out of time, and I've asked that an uncontested divorce hearing be scheduled.
That court date for the uncontested divorce hearing has now been set up.
I have to give you at least 20 days' notice by law of that court date, which is what I am doing through this document. Your NJ Uncontested Divorce is scheduled to occur on October 28, 2019 at 9 am before Judge English at the Monmouth County Courthouse in Freehold, NJ.
I also have to tell you exactly what I'm going to be asking the judge for at the uncontested divorce. Here's a list of what I'm going to be asking the judge for:
1. My client wants custody of the children.
2. My client wants you to pay him child support in the amount of $200.00 a week.
3. My client wants you to pay him alimony.
4. My client wants the house. He wants the dog. He wants the airplane. He wants the boat. He wants you to pay the debt, etc., etc. That's what I'm going to be asking the judge for."
So, let us further assume that Ms. Jones then shows up in Court on the court date and the judge begins a trial. It's actually a trial where I will put my client, the husband, on the witness stand.
I usually start with some pretty generic questions, such as "What day were you married?"
Such and such a date.
"Do you have kids?"
"How old are they?"
Such and such age.
"Do you want custody of them?"
"Do you think that your wife should not have custody?"
No, she shouldn't have custody.
"Tell the judge why she shouldn't have custody."
Well, she does this. She does that. She does this. She does that.
Now let us assume that the wife didn't show up for the uncontested divorce hearing and we have this whole trial.
Now, at the end of hearing all the evidence presented by my client (remember, in this example, the wife didn't show up, so she didn't get the opportunity to tell her side of the story to the judge), the judge makes decisions.
The Judge will rule as to what in my proposed "Notice of Proposed Final Judgment," the document that both Ms. Jones and the judge were given, will be granted to my client and what will be denied.
And the judge makes a decision, puts it in writing, and that's a court order, and the husband and the wife are now divorced.
That's one way that it could happen.
MORE OFTEN, THIS IS WHAT HAPPENS INSTEAD...
Another way that it could work is the same basic history as what I gave above, but instead of Ms. Jones ignoring the first letter, ignoring the second letter, ignoring the Notice of Proposed Final Judgment, ignoring everything -- instead, when the wife gets the first letter, she says to herself, "He wants a divorce? He wants me to go to a lawyer? Well, damn it, I'm going to find the best divorce lawyer that I can."
Ms. Jones gets on the computer and searches for "Monmouth County NJ Divorce Lawyer" or something similar.
Or she calls somebody who she knows was happy with her divorce lawyer and she asks for a referral.
She goes to a reputable lawyer. She likes him. She hires him.
That lawyer calls me and says, "Steve, I've been retained to represent Ms. Jones. I have your letter dated August 1, 2019.
I understand that my client has not responded to your prior communications. She was very upset and basically just put her head in the sand, but she's retained me now and she's prepared to go forward.
Do you think that this case can be settled amicably?"
I say, "Hi John. Of course! 99 out of 100 New Jersey divorce cases can be settled amicably."
He says, "Good. Let's prepare CASE INFORMATION STATEMENTS."
That's a budget. New Jersey divorce law requires that both sides prepare a multi-page Case Information Statement.
We agree to exchange Case Information Statements four weeks from now.
The other attorney proposes that we get together in person at my office for a "4-way conference." Two lawyers and two clients.
I don't often like "4-ways." Because of high emotions, they are in my view often a waste of time.
But my client in this case told me that he thinks that a 4-way may help.
So we agree to sit down and see if we can settle the case.
There is a lot to discuss. It can be stressful for the divorcing couple.
Maybe settlement doesn't happen on the first day. Maybe we've got to have more than one 4-way conference before we can get a settlement that both sides think is acceptable.
Indeed, often notwithstanding good faith by all concerned, we still can't settle the case at four way conferences.
At this point, I will often suggest, "Let's hire a MEDIATOR to work with us." The other side usually agrees.
We attend mediation which is kind of like the 4-way conference but with a 5th person present who is neutral and helps to guide the discussions and keep them productive and moving forward.
Ultimately, we either end up with an agreement or we don't. More than 9 out of 10 times we settle the case. (In those few cases where we don't settle, the case will then be scheduled for a divorce trial.)
If we are able to settle the case, I will draft up a formal AGREEMENT.
The agreement could have many names but all of them mean basically the same thing. An "Interspousal Agreement." A "Property Settlement Agreement." A "Matrimonial Settlement Agreement." These are different phrases that all refer to the same type of document.
The draft of the agreement goes back and forth between counsel, being modified, corrected, added to, and deleted from, until it is as accurate as we are able to get it.
The husband signs it. The husband's lawyer signs it. The wife signs it. The wife's lawyer signs it.
Now, we jointly look at our calendars and say, "What's a good day to go to Court and put this divorce through as an 'uncontested divorce' and end the case?"
With input from the court staff, we pick a day.
We've got a nice settled case.
On the agreed upon date, both clients and both lawyers meet in the Judge's courtroom for a simple hearing called an "uncontested divorce hearing." The proceeding is usually quick and the judges are usually more than happy to accommodate us, as the uncontested divorce actually counts as "one more notch" in the judge's belt, so to speak.
But what if the case never settles?
What if notwithstanding all of the tools that we use to try to negotiate a settlement, the parties simply still disagree over major issues and the case will not settle?
Well...then the case has to be decided by a neutral third party...either a judge (at a trial) or an arbitrator (selected and paid for by the parties at a private arbitration.)
At the end of the trial or the arbitrator, the Judge (or the arbitrator) makes all of the decisions for the parties, including decisions relating to custody of the children, division of all of the assets, how to handle debts, alimony, child support...and any other "marital decisions" that the parties are unable to resolve themselves.
And so that is a summary how a typical New Jersey divorce works its way through the system, from the beginning of the case to the end.
Not all cases are the same but most will follow the above format, with some deviations depending upon the circumstances of the case.
Most people find that it is in their personal best interest, as well as the best interest of their children, to work hard to try to find a way to settle their divorce case, without the need for judges and arbitrators.
"OK, STEVE" YOU SAY. "BUT HOW SHOULD I DEAL WITH THE PROBLEMS THAT I'M GOING THROUGH RIGHT NOW?"
If your marriage is under stress, there may be some immediate issues that you need to resolve before trying to settle your entire divorce case.
In particular, it might be helpful to learn how to protect yourself, your children, and your assets.
Do you want to move out and actually physically separate? Or is moving out likely to hurt your CHILD CUSTODY case?
DO YOU NEED MONEY from your spouse for your needs during the divorce case? Or will your spouse be seeking money from you and if so, how do you protect yourself so that you, too, can survive?
Is your spouse ABUSING ALCOHOL OR DRUGS? And if so, how can you protect your kids?
Should you talk to a divorce lawyer? And if so, how do you find a really good one? HERE IS A FORMULA FOR FINDING JUST THE RIGHT DIVORCE LAWYER FOR YOU.
Is your spouse a NARCISSIST? If so, then you need to learn how to protect yourself during your divorce from your spouse's destructive behavior.
I answer all of these questions and hundreds more in my free NJ DIVORCE EDGE 2023 COURSE (CLICK HERE).
Until next time,
Steven J. Kaplan, Esq.
Specializing In Divorce
Throughout New Jersey
5 Professional Circle
Colts Neck, NJ. 07722