WHAT HAPPENS IN DIVORCE PROCEEDINGS?

 

The Complaint

 

One of the parties has to file a Complaint for Divorce to initiate the divorce case. The Complaint has to allege that one of the recognized causes of action for divorce in New Jersey has occurred. The most common cause of action for divorce used at present is irreconcilable differences since it is considered a “no fault” divorce.

 

Parties still at times want to allege adultery.

 

The cause of action used will usually not impact the issues addressed in a divorce action.

 

However, if a party is seeking divorce based on extreme cruelty and suffered abuse/damages, he/she may want to file a claim for damages as part of the divorce matter called a “Tevis claim”. If the claim is not brought in the divorce matter, the party alleging damages may be barred from bring those claims later. These types of claims need to be worth it, because they can complicate and delay a matter, delay healing, and are costly to advance.

 

The other party will file an Answer, an Answer and Counterclaim or a Notice of Appearance.

 

The first Court event is typically a Case Management Conference (CMC).

 

The parties will file Case Information Sheets with financial documentation and exchange discovery. Sometimes the parties will need to obtain real estate appraisals, business valuations, a cash flow analysis, custody evaluations, pension valuations, etc.

 

Issues of custody and parenting time need to be resolved first because same can impact finances, possession of the home, etc.

 

Business valuations and cash flow analyses are needed if a party is self-employed.

 

Once discovery is completed, the Court will schedule an Early Settlement Panel (ESP). The process varies from county to county, but, in summary, a family law attorney will be assigned to your matter to hear a summary of facts from counsel and then make  recommendations for settlement.

 

If not resolved at ESP, the case will then be assigned to an economic mediator, usually selected by counsel. The mediator will devote more time to facilitate an agreement between the parties. The mediator is paid by the parties.

 

Most matters resolve at or shortly after mediation. Over 90% of cases resolve. If your case is resolved, the attorneys will need to encompass the settlement terms into a Marital Settlement Agreement (MSA). The MSA is VERY IMPORTANT because this document will govern the next phase of your life. Before you sign the MSA, you need to make sure it includes all terms, it is clear and unambiguous, and that you understand it in full and understand the impact of its terms.

 

If the case does not resolve at mediation, the Court will schedule you for at least 1-2 more conferences (pre-trial conference, settlement conference, etc.) and will schedule trial. Sometimes the Court will compel you to attend an ISC (Intensive Settlement Conference) and assign a family attorney to your case to act as a Court appointed mediator.

 

Trial is not easy. It is very costly, financially and emotionally. It is frustrating because even when you are scheduled, other matters come up on the Court’s calendar and you and your attorney may be sitting in Court all day and only get a couple of hours of trial time. Also, you do not get a decision at the conclusion of trial and typically have to wait months for the Court’s decision.

 

Again, most cases do resolve but where in the process your case resolves will depend upon the complexity of your matter but also on the personalities involved. In matters where custody will not be an issue and neither party is self employed, an experienced family attorney will usually know what reasonable settlement terms would be after the initial consultation, or upon receipt of Case Information Statements and tax returns.

 

Of course, the earlier you can settle your case, the better, as long as you have knowledge of the finances. However, if you have an emotional, unreasonable, or domineering party or an unreasonable attorney who is not giving the other litigant realistic expectations, on the other side, you will need to go through the process. Your case may take a little longer, but will probably still settle. You should not make substantial financial concessions, just to settle early, if it will impact your future financial security, as long as you have reasonable expectations and an understanding from experienced counsel of what the likely outcome is at trial.