A very nice woman, frightened out of her mind, hired me recently and told me how she had been just informed by an email from her husband's lawyer an hour earlier that her case was scheduled for trial in less than 48 hours, 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: something is clearly wrong and needs to be corrected quickly.
After listening to her tell her panicked story, I first told her that it did not appear to me that she was properly served with NJ Divorce Papers. I'm looking into that now.
She calmed down.
I then told her how the system is supposed to work.
Afterwards, I thought that it might be helpful to others if I would repeat what I told her here to help others understand how the Monmouth County divorce process usually begins.
So, here's an overview of how the NJ divorce process is generally supposed to work, in my opinion, and how it works here in Monmouth County.
People get married. They're happy.
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 go to consult with a divorce lawyer, like me.
When somebody comes to me, I discuss with them the benefits of marriage counselling. 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 that they want to hire me to represent them in a divorce.
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.
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 to 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.
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 January 8, 2017 (additional copy attached).
In that letter I advised you that I had been retained to represent your husband, Robert, regarding certain marital difficulties that have 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'm sending you a 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. It is a courteous way to start things.
However, if the second letter doesn't do it, I bring my client in and I say, "Look, it sounds like your wife doesn't want to cooperate. Since we are not likely to get voluntary cooperation from your spouse, would you like to consider having me prepare a divorce complaint?"
While there are several different grounds upon which we could file 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 our dirty laundry out.
It 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."
Often 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 to 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.
Now that 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.
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 January 8, 2017. 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 an uncontested trial date.
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 January 8, 2017 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 February 3, 2017. 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 March 28, 2017 at 9 am before Judge Smith 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.
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 January 8, 2017. 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 (CIS)." That's a budget. The New Jersey Divorce Law requires that both sides prepare a 10 page Case Information Statement.
We agree to exchange Case Information Statements four weeks from now, and to then get together in person at either lawyers' office for a 4-way conference. Two lawyers and two clients. We agree to basically sit down and see if we can settle the case (as an aside, I have a Monmouth County Divorce Attorney colleague who is so loud, obnoxious, and abusive at 4-way conferences that someone once referred to a 4-way with him as a "one-way." But that is for another day...)
There is a lot to discuss. It can be stressful for the divorcing couple and it is often emotional.
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, sometimes 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. If we don't settle, then the case will 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, 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 and end the case?" We pick a day.
We get on the phone with the judge's staff and say, "Hey look, good news on the Jones matter. We've got a settled case. Can we can come in next Thursday at 10:00? Oh, 10:00 is too busy? How about 2:00 o'clock? Does it work for you? Yes. Does it work for you? Yes. You know what? Let's go with next Thursday at 2:00 o'clock."
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 accomodate them as they prove to be "one more notch" in the judge's belt, so to speak.
And so that is a summary how a typical Monmouth County NJ divorce case is supposed to work its way through the system.
Of course every case is different. The lady who just hired me who I mentioned at the beginning of this post was apparently treated poorly and improperly by opposing counsel and/or her husband. I'm still analyzing what occurred and don't fully understand it yet, but the judge has scheduled a hearing in the near future to figure it all out.
Complications do occur. You don't want a real estate lawyer dabbling in your divorce case. The consequences could be too damaging to you.