Introduction

In every initial consultation involving matrimonial practice (except when a prospective client comes in clutching the other party’s divorce complaint), the consulting party at some point asks us, “How exactly do I file for a divorce?” This blog post reveals the answers.

.

Initial Consultation

In the initial consult, we ask you to explain your circumstances and help you develop a plan to resolve any disputes, including possible methods of resolution and substantive positions and interests. We ask you many questions about your marriage and relationship, health issues affecting spouses and children, including substance abuse and domestic violence. We need to know what you are grappling with, whether there are hidden issues that may be important to the processing and ultimate disposition of your case — but that we cannot know unless you honestly disclose them to us.

We need to know what couples and/or individual counseling or family therapy has been tried or may be ongoing. We need to understand whether both parties agree that the marriage is dead; whether our prospective client or the other party believes otherwise; and whether additional therapy should be attempted before a Complaint for Divorce is filed. Better to consider that option — saved by the bell –before starting down the inexorable divorce track, one that gets tougher and tougher to get off.

The interview process and the entire representation are protected by attorney-client non-disclosure, so you need not worry about who we will tell about you or your comments. The simple answer is, “no one”, unless you give us permission to do so.

We will advise you that more than 98% of all New Jersey couples settle their cases without the need for a trial, and that our goal should be to develop a comprehensive Settlement Agreement, to be signed and honored by both parties, and that will allow the parties and their children to move on in life as happily as possible.

Finally, we tell you that the divorce process is not officially under way until someone (your spouse or you) actually files a Complaint for Divorce with the Family Court. That is the only way to begin the dissolution of your marriage.

What is a Complaint for Divorce?

Your Complaint for Divorce is a legal document filled out by your attorney and you. It informs the Family Court and your spouse that you are filing for a legal dissolution of the marriage, which, when granted, has legal implications for property ownership, inheritance, and the right to remarry at some point (“the last thing on my mind,” many clients will say).

What information is included in the Complaint for Divorce?

Your attorney and you will fill out all required information in the Complaint for Divorce, which includes names and addresses of your spouse and you; date and place of your marriage; the type of wedding ceremony you had (religious or civil); and whether this was your first, second, or third marriage. You will supply the names of your children adopted or born during the term of your marriage. Previous court filings and appearances related to the divorce are listed, including domestic violence matters and previous divorce complaints that were filed and dismissed. You will also be asked to state the grounds, or reasons, for your divorce, along with what it is that you want (see list below).

What are New Jersey’s “grounds for divorce?”

New Jersey residents wishing to get divorced may file their Complaint for a number of reasons. Our state accepts “no fault” grounds of (A) irreconcilable differences, not requiring a separation, and (B) the parties’ separation for 18 months or longer in separate habitations. You also may file on the basis of “marital fault”, for reasons such as adultery, imprisonment, habitual substance abuse, extreme cruelty, and sexual deviance, as examples. The most common grounds used for divorce are irreconcilable differences, extreme cruelty, and separation. Parties may use more than one ground in a Complaint. It is important to note that marital fault should not enter into the Court’s decisions regarding custody or parenting time of children, alimony or child support, or division of property. However, parties often file such fault-based complaints strategically, to educate the trial judge to what has “really” gone on in the marriage, and possibly to seek to influence the judge on issues of custody and parenting time. In extreme cases of spousal abuse, such as physical injury to a party or attempted murder, such grounds may be coupled with a demand for money damages.

What is the Entire Controversy Doctrine and how does it relate to my Complaint?

New Jersey has a rule, set out in our Constitution, statutes, and Rules of Court, requiring parties to bring all of their claims against one another in one law suit, to be case managed by the trial judge or distributed to other parts of the court, depending on the nature of the claims. So, for example, if Mr. Jones has an injury claim against Mrs. Jones and Mrs. Jones has a breach of contract claim against Mr. Jones, both of those claims MUST be set forth in the Complaint for Divorce, or they will be rejected if filed later on, even if the relevant statute of limitations has not run on those claims! Therefore, we advise our clients to tell us, right up front, what claims they have against the other party, apart from claims directly related to divorce — which typically include (here is “the list” referenced above) child custody, child support, alimony, equitable distribution of marital assets and debts, and a requested award of counsel fees and costs. Failure to raise personal injury, contract, or similar claims at the same time as the above-listed items of relief could be fatal to the left out and non-divorce claims.

What other claims should I consider in drafting my Complaint?

If there is going to be a property dispute related to relatives, in-laws, business partners, a corporate or partnership dissolution, bank loans, or even significant credit card debts, it is possible or even mandatory that those people and entities should be included as named parties in the Complaint. For one thing, the Family Court has wide jurisdiction to resolve such claims and issues in one case. For another, it can be difficult sometimes to get financial records and other discovery from a non-party witness or entity. If they are named parties in the Complaint, they will have to produce the documents or suffer the consequences with the trial judge. This is not a decision to be made lightly, but, once made, it can have a major positive effect on the processing and outcome of your case.

How important is my Complaint in the process?

Since the Divorce Complaint is a legal document and starts the divorce process, it will be treated as a roadmap of sorts by opposing counsel and the Court. It is a document filed under oath, so you will be held to your sworn statements for the rest of the case. This document will follow you through the process, and be viewed by your soon-to-be-ex, his/her legal counsel, as well as members of the court staff — including the judge. Therefore, we and you must fill it out completely and correctly.

What attachments must I file?

You must verify the contents of the Complaint; you must include a Certification of Insurance Coverage, and swear that you have not cancelled or caused cancellation of relevant family insurance for at least 90 days before the document is filed; and you must certify that your lawyer has advised you regarding available Alternative Dispute Resolution processes that may become available throughout the case process. Shortly after the initial divorce papers are filed by both sides, the parties are required to timely file, under penalty of pleadings dismissal, a certified and complex financial circumstances snapshot, known as a Case Information Statement, including relevant and required financial documents (paystubs, tax returns, and the like). These documents are essential in the case management process, because they allow legal counsel, the parties, a mediator, a law clerk, and the trial court to see the parties’ respective statements of earnings, budgets, assets, and debts. Once again, these documents are filed under oath, and parties will be held to their contents for completeness and accuracy. A misfiled document is a nightmare for the non-complying party, so we strongly urge parties to “measure twice, cut once”. We work closely with our clients to complete these forms correctly, including footnotes and explanations where required.

What happens with my Complaint after I sign it?

Once you have signed your Complaint, it is up to our office to file it in the correct county, get a stamped filed copy with a Docket Number, and attend to service of process upon your spouse. If your spouse has commenced the case with a filed Complaint and you have been served, then we will prepare an Answer, or an Answer and Counterclaim, or a simple Entry of Appearance not contesting the divorce itself, but rather focusing on underlying issues of, as relevant, child custody, child support, alimony, equitable distribution of marital assets and debts, and a requested award of counsel fees and costs. It generally does not make a difference who files first as Plaintiff or second as Defendant. These days, most trial judges and lawyers consider that the case is really about “The Marriage of Mr. and Mrs. Jones”, rather than “Kramer vs. Kramer”. As a named Defendant, you have the same rights as the Plaintiff and the same access to the courts on an interim basis (pre-trial) as at trial.

If we can serve a Defendant via letter with cooperation, seeking a voluntarily signed Acknowledgement of Service, that is our preference. If the Defendant can come in and sign at our office, that is fine, too. If a Defendant evades process or refuses to respond timely, we will have him or her served via process server, whether at home or at work. Since service at work can be embarrassing, and we know that, we impress upon the other spouse the need to cooperate with us. Service of process does not mean that anyone agrees with what is in the Complaint. It only means, literally, that the other spouse received the papers. They are informed that they have 35 days within which to respond to the papers they were served, or they risk entry of default. A defaulting party generally loses the right to contest the Plaintiff’s claims, which is a strong motivation to seek legal counsel and enter an appearance in the case.

Once both parties have entered the case, with or without legal counsel, there is plenty of time and incentive to work out settlement of all issues — as relevant, child custody, child support, alimony, equitable distribution of marital assets and debts, and counsel fees and costs. There is plenty of time to decide whether the method of dispute resolution will be party-created, mediation, arbitration, collaborative, or trial. Each one has its advantages and disadvantages. Clearly, dispute resolution that takes the least amount of time, dollars, and stress will be preferred. However, if the parties cannot get along, even with professional intervention, then adjudicative process (arbitration or trial) is better than no deal or a one-sided deal.

Conclusion

An article like this cannot give more than a basic explanation of the divorce process. There are nuances too numerous and complex to be covered here. One conclusion should obviously be drawn, however: Your divorce is too complex and too dangerous for parties to handle on their own, without benefit of experienced divorce counsel. Decisions that you make today could affect you and those you love for decades afterward. This is yet another example of “measure twice, cut once”.

If you have questions or concerns about any aspect of divorce practice, please do not hesitate to let us know. We will be happy to help you.