An Overview of the Divorce Process in New Jersey
In this video, divorce attorney Jordan Rickards gives a basic overview of the divorce process in New Jersey, from the filing of the complaint, through the case management conference, the early settlement panel, economic mediation, the intensive settlement conference, and the trial process. He also discusses basic discovery procedures, such as interrogatories and notices to produce, that you can expect to encounter. What follows below is a transcript of the above-video.
“Hi, I hope you’re doing well.
I want to do a basic overview of the divorce process in New Jersey from beginning to end. And I’m doing this because I get people who call me all the time and they’re thinking about a divorce, but they don’t have the first clue about how any of it works. So what I’m going to tell you here is what I tell basically everyone who comes to my office for a general consultation.
But before we start, I need you to keep two things in mind. And the first is something that the judge I used to clerk for fifteen years ago told me. He used to tell me that he knew he had done the perfect divorce when both sides left the courtroom equally unhappy. Divorce is not about winning, it’s about minimizing damage. Nobody wins in divorces other than the attorneys, and the longer the divorce takes the more the attorneys win and the parties lose.
Now, I’m not talking about those cases where you have a wife who’s been severely abused by her husband and she wants to get out of that relationship for her safety, or something like that. That’s different. My point is that with a typical divorce, if you think you’re going to come out ahead financially you’re going to be disappointed. The general rule in divorce is that both sides are entitled to maintain their marital standard of living after the divorce. But that’s impossible. Two separate people simply cannot maintain two separate households at the same level that they maintained one household. So there’s going to be diminishment.
Secondly, every client has two conflicting interests at play: they want the divorce over as soon as possible because it’s a miserable process, and they want every penny to which they’re entitled. But those two things work against each other. You can end a divorce very quickly by giving in to the other side, or you can get everything to which you are entitled by litigating the case fully. But it’s hard to get everything very quickly. The parties who do the best are the ones who understand that this process is more of a marathon than a sprint, and can handle what’s can become an endurance test. Now, if you and your spouse can be reasonable and come to an agreement early on that you’re both happy with, or at least, equally unhappy with, that’s great. But that’s not as common as you might hope. Usually the process has to play out a bit, and it’s in your interest to know what that process looks like.
So here we go.
The way this all starts is one party will file what’s called a complaint for divorce, and it does not matter which party does it. Whoever files is the plaintiff, the other spouse is the defendant, and that has absolutely no impact on anything, so don’t worry which one you are.
Once the complaint is filed, it has to actually be served on the other person. The person served, the defendant, then has 35 days to respond with an answer. And what the defendant usually does, if he has an attorney, is he files with that answer a counterclaim, which is his own complaint for divorce. So now they both have complaints for divorce against each other.
The counterclaim is actually kind of unnecessary because only one party needs to want a divorce, but a counterclaim can come into effect in the rare occasion where the plaintiff later chooses to withdraw her complaint, but then you still have the defendant’s counterclaim to move the case forward. But that’s about it.
So, in short, it doesn’t really matter if you are a plaintiff or defendant in a divorce in New Jersey. You’re both in this together, and both sides can ask the court for all the relief they want.
Now, when you file a complaint or answer, you have to file some other documents along with it. You have to file what’s called a confidential litigant’s information sheet, which is just one piece of paper where you fill out basic information about yourself; contact information, a few other basic things. This takes about a minute to fill out.
You also have to file a certification saying you are aware there are alternate ways to resolve your case, such as mediation and arbitration, and you have to file a certification indicating what kind of insurance you have. Your attorney will have all these forms and can do them with his eyes closed, so don’t worry about it.
Once everyone has filed all of that, that’s when the litigation formally starts. At this point, a couple of things are going to happen at once.
First, your attorney is going to get what’s called a notice for a case management conference. You might get a notice for it too, but you probably don’t have to go, especially if you have a lawyer. A case management conference is just a court appearance where the judge and the parties work out what the discovery schedule is going to be, like when certain things have to be completed by the various parties; when the interrogatories and notices to produce have to be filed; when the case information statement is due. I’ll get to that in a second. Just know that as a practical matter, no one ever goes to the case management conferences. The attorneys just call each other ahead of time, and work out their own order, fax it to the judge, the judge signs it, sends it back and everybody gets on their way.
While that is happening, or usually around the same time, if there are children involved in the divorce, the married couple is going to get a notice to go to child and parenting time mediation. This is where you and the other side sit down with a mediator from the court, who is sometimes an attorney and sometimes not, and you try to work out among yourselves what your child custody arrangement is going to be; who’s going to have a primary physical custody of the child; is it going to be a 50/50 relationship; what’s the visitation schedule going to be? And if you can work this out amicably, it’s really best. You have to remember you’re divorcing your spouse, you’re not divorcing your kids. Even though you’re not going to be husband and wife anymore, you are still going to be the parents of these children and the more you can work together now, the better for everyone down the road.
But keep this in mind: you don’t have to come to an agreement at this mediation. You can choose not to come to an agreement. And your attorneys are not going to be at this mediation. This is just between the two of you and the mediator. And it’s much better to not come to an agreement than to come to a bad agreement, because once that agreement becomes a court order, it’s very hard to change. Whatever arrangement you ultimately come to, whether it’s done by mediation, whether it’s done later on between yourself and your attorneys, or whether it’s imposed upon you by the court at a trial, that arrangement is basically going to control your relationship with your kids for as long as they are kids. Yes, it can be modified, but courts will generally not do that unless you can show a substantial change of circumstances.
So if you think “Well, let’s just get this over with for now, and I’ll take only a small amount of time with my kids for a little while just to make things go smoothly, and we can fix it later,” get that out of your head. In New Jersey, the standard if you want to change a custody and parenting time arrangement is that you have to show a substantial change of circumstances. You can’t just say, “look, back then I just kind of agreed to this just for the sake of getting the divorce on its way, and now I want to see my kids more.” That’s not how this works. If you want your fair share of parenting time, you need to get it up front because you risk a fight down the road if you don’t, and you’ll really be at the mercy of your ex-spouse. And your ex is not going to want to give you more parenting time down the road once he or she finds out that will mean reduced child support, and cause more interruption in his or her new life that’s now being built without you.
And I’ve seen this get ugly, where one parent has the kids way more than the other, so that parent begins to act like the children belong to her (or him) and they’re just kind of sharing the children occasionally with the other parent, and they flip out when the other parents wants more time. That’s not where you want to be.
So the point is that if you want to spend time with your kids, and I hope you do, get as much as you can upfront, because it’s very difficult to get more later on without showing a substantial change of circumstances. And maybe that’s not fair, but your case is not going to the Superior Court of Fairness, it’s going to the Superior Court of New Jersey, okay?
And what this means for the custody and parenting time mediation is that if you don’t feel comfortable doing any of this, that’s fine. Just get as far as you can with the mediator and then say you’re not comfortable signing off on anything without talking to your attorney, and go from there. That’s perfectly alright.
And that basically gets us through the first stage of a divorce, and now the real work begins.
Once the case management order is signed, the attorneys will get into what’s called the discovery process. This is a few different things. Both sides will start this by serving on the other a set of written interrogatories. These are questions that you have to answer that are going to detail your personal information, and your financial information in great depth, so that everyone can figure out the basic standard of living that the parties enjoyed during the marriage, what assets there are in the marital estate to divide up and how they should be divided, and who should be paying what.
These interrogatories tend to be enormous; in fact, they’re probably about twice as long as they need to be. Just by way of example, in a regular motor vehicle lawsuit you’ll have 25 interrogatories to answer, but in family court you’ll commonly get over a hundred, and they have all kinds of sub-parts. If you really added up the sub parts of these things, there are probably three hundred or four hundred questions you have to answer, of which only a small fraction apply to you, and half of the ones that do apply you won’t be able to answer, and you can discuss with your attorney how best to deal with that. It’s really more detail than I want to get into in this video, as I’m just trying to give you an idea of what’s going to happen.
Now, along with the interrogatories, you’re going to be served with a notice to produce, which is going to ask for very specific documents, usually financial statements.
In addition to all of that, both parties are required to file what’s called a CIS, a case information statement. That’s a 10-page document where you are going to detail your income, your assets, your expenses, and your debts. It’s supposed to present a really full financial picture of where you are. You’re also going to have to attach to that your income tax returns, your W2 statements, any sort of profit-sharing statements, anything like that, bank accounts, pensions, that sort of thing. And the idea is that both sides are able to get a full financial picture of the other side.
And yes, a lot of this is going to be redundant with the notices to produce and some of the interrogatories, which generally ask for more detail, most of which is superfluous.
Now here’s the thing: you have to be really honest with these things, because the other side probably knows most of the answers too, and if you get caught in a lie (in addition to it being illegal) it will kill your credibility with the court. And every court, in every case, is trying to figure out which side is more reasonable and honest than the other, and once you’re labeled as the dishonest one, it’s almost impossible to shed that label, and then nothing goes your way. So, honesty is the best policy.
Once the CIS, and interrogatories, and Notices to Produce are exchanged, both sides are allowed to depose the other side. And that’s when you get a court reporter, and you guys meet in an attorney’s office and one side asks you questions under oath about whatever they’re trying to get information on. Maybe they’ve hired a vocational expert to opine on what your earning capacity really is, and they’re asking you questions that the expert wants answered. Or maybe you just haven’t given thorough enough answers in your interrogatories and there’s something they really want to get to. But to be honest with you, depositions in family cases are kind of rare. I would say 90%, if not more of divorces don’t involve this sort of thing just because of the expense of it, and it’s kind of pointless. But it is an avenue available to you.
Towards the end of the discovery period, you’re probably going to get a notice to go to what’s called an ESP, which is early settlement panel, and that’s when you and your attorney and the other side and their attorney have to go to court, along with probably dozens of other couples, and each divorcing couple is going to be sent into a room with a panel of other attorneys, usually two or three other attorneys per panel, who are basically mediators, and they’re going to spend all of five minutes hearing what your case is about and what the issues are in your case. And then they’re just going to make a recommendation for how they think the case should be decided: who should get what in terms of spousal support, who should get what in terms of child support, and what child custody should be, if that hasn’t been decided, who should get what in terms of assets, how that should be divided, along with the debts. Again, this is non-binding, you don’t have to listen to or accept their recommendations, but you do have to participate in the process.
And what you’re going to realize at this point, if you haven’t already, is that a lot of what you have to do in a divorce is just designed to wear you down, and drive up your attorney’s fees so that you don’t wind up on the trial list, and you instead settle the case and get it off the court’s docket.
Something like 98% of divorce cases don’t go to trial, which means they wind up settling. If these cases all went to trial, we would need 50 times as many judges, and 50 times as many courtrooms, and 50 times as many courthouses. The system would break overnight. So what the system does is it forces you, really coerces you, into settling by dragging the process on and making you go through all these various hoops and spend all kinds of money on me.
And we’re not done putting you through hoops yet, because once you’ve gone to early settlement panel, if you haven’t been able to resolve your case at that point, the court is going to force you to go to what’s called economic mediation. And that’s where you’re going to now go to another mediator, and this one you will have to pay for; they’re supposed to do two hours for free but the first hour is just in preparation for the mediation, and the next hour is spent introducing everyone to the mediation process. So you’re going to wind up paying for your half of this at $200 per hour, and you’re going to be paying your attorney $400 per hour, and the other side’s paying their attorney as well. So this process is now costing over $1000 per hour for everyone, and that’s all coming out of the marital estate one way or another. And during this economic mediation, you’re basically going to bring up the same issues you brought up at the ESP and make the same arguments and see if that gets you any closer to resolving your case.
Now, the good news is that in my experience, most cases, by the time you’re done with economic mediation, are either settled, or something very, very close to it.
If it is not settled, the court is then going to drag you in for what’s called an intensive settlement conference with the judge. And basically the way this works, in every county it’s a little bit different, but you show up to court at nine o’clock the judge says, “okay, both parties go into the hallway with your attorneys, and see what you can do, let me know when you’re settled.” And you’re going to sit there all day, and the judge is going to make you keep going back and forth and seeing what you can get done to settle the case, or if not settle the case, at least resolve some of the issues in the case so that if you do have to do a trial, you’re not trying every single issue. You’re just trying certain ones that you can’t agree upon, which is totally fair. You can do that.
But all the while, if you’re not settling, the judge is threatening you with a trial date, and this is going to be very inconvenient for you. And we can argue all day long about the extent to which this sort of thing is made deliberately inconvenient, but the fact is that it’s just the reality of family court. Family court has too many litigants and not enough judges, so the calendars are always overloaded, and trials take the longest so they overload the calendar the most. Some family court hearings like motions and other procedural things just take minutes, but trials can take days.
And understand this: A trial in family court is nothing like a trial in criminal law where Monday morning you show up, you impanel your jury and you do your case all day, every day until the case is resolved. That’s not what family law is. Family law is: you have a trial date, and you show up at 9:00 AM, and there are 15 other cases on the list. And since you’re the trial, and your case is going to take the longest, you’re going last. They’re going to get everyone else out of the way first. And then, maybe sometime after lunch, at two o’clock if you’re lucky, they’ll call your case and maybe you’ll do like an hour or so of your trial, and then the judge will say, “okay, that’s all I can do for today. How about you come back in another week or two,” and then you show up a week or two later and you do the second hour or two of your trial, and you keep doing this until it’s over and the judge makes his ruling and imposes on you and your spouse whatever final decisions he or she thinks is appropriate, which is probably very close to what you were told at the ESP and economic mediation, which probably neither of you will be happy with, and you will have spent a fortune to get there.
Again, it’s very rare for a divorce to end with a trial verdict, and honestly, if you hire an experienced family law attorney and the other side does too, we pretty much know what a case is worth just by reading your CIS, talking to you and maybe sitting down with everyone for a few minutes. Honestly, I can give you a ballpark estimate of what your case is worth pretty quickly, and I promise you that unless the other side is being really unreasonable, what you’re going to be arguing about is probably going to be worth a lot less than what you’re going to wind up paying us in fees. Now if either side is being unreasonable, your attorney should be making the court aware of that, and creating a record of it, so the court can force the other side to pay your fees if you have to go to trial needlessly.
But let’s say that doesn’t happen and you settle your case, like 98% of all other divorce litigants. What’s going to happen is your attorney’s going to draw up what’s called a marital settlement agreement, which is going to outline all the various issues in your case and how you guys have decided to resolve them. You’re then going to go in front of the judge to put everything through, in a process that’s going to take about five minutes. The judge isn’t even going to review the marital settlement agreement. He’ll just ask if you reviewed it, if this is what you really want to do, if your attorney has answered all your questions, if you’re satisfied with his services, if you agree to be bound by this, so on and so forth and a bunch of other questions along with it. And then they’ll issue the final judgment of divorce right there and you’ll go home and you’ll be divorced. And that’s basically it.
So that’s a brief overview of what the divorce process is like in New Jersey. If you’d like to discuss that in greater depth, I’d be more than happy to set up a consultation with you. Just give me a call and I’ll be happy to meet with you. Good luck.”