Is there such a thing in New Jersey as a contested cause of action for divorce? If so, what is it, and how does it work? 

When one spouse decides to fight the divorce itself, and not just the important underlying issues, this tends to complicate the process for the other party.  Understanding what this means will help you figure out your available options.

Both sides have the right to file causes of action for divorce against the other.  One party files a complaint; the other may file an Entry of Appearance (wishing to be heard only on underlying issues, but not contesting the requested divorce); or may file an Answer denying the grounds asserted; or may file an Answer and Counterclaim, asserting his/her own grounds for divorce against the originally filing party; or may file nothing, preferring to proceed by default (discussed below).  A Final Judgment of Divorce involving cross-complaints for divorce would be called a “Final Dual Judgment of Divorce.”

Is There a Difference Between a Contested and Uncontested Divorce Complaint?

We have seen cases where the stated cause of action was a screaming fault ground, but the issues were easy to resolve.  That is not a contested case.  We also have seen mild causes of action asserted, but the underlying issues were hotly disputed.  Those are examples of contested cases.  You must keep your eye on the underlying issues.  That is the material from which contested cases take shape.  A fight over child custody is not going to change direction simply because a party files on the grounds of irreconcilable differences.  That could portend a fight to the death, regardless of the stated cause of action.

Whether or not the other party contests your divorce complaint, you have the right to proceed with a divorce cause of action, whether irreconcilable differences, extreme cruelty, adultery, habitual addiction, or other similar grounds for divorce. In New Jersey, a fault ground is, generally speaking, no more or less powerful than an uncontested ground for divorce.  Sometimes people use a fault basis to make a point about the other party, regarding their character, personality, drug/alcohol habits, mental illness, or the like, because it may be relevant and helpful to them in a child custody fight on the issue of parental fitness. Otherwise, fault versus no-fault grounds makes little difference in the economic life of a divorce case.  People get neither more nor less alimony, child support, or distributed property based on the cause of action. Basically, if there is a recognized ground for divorce in New Jersey and you are willing to swear to it on the facts of your case, you will get your divorce.

In bygone days, fault grounds, if proved, could lead to a trial court decision on alimony, child support, and property division.  Except on the issue of child custody/parenting time, those days are over in this State.

Fault re-enters the picture if a party’s behavior has been outrageous, making it unfair and unreasonable to treat them as an equal partner in the dissolution process.  Reckless injury to a child, personal injury to a spouse in the context of domestic violence, gambling away marital assets, or transmission of an STD are examples of extreme fault that, if proved, could result in punitive measures being taken by the Court.

Even if your spouse does not cooperate with the service of process (summons or acknowledgement of service), they cannot stop you from filing or getting the divorce you want.  Once you file for divorce, your spouse will receive a proper legal notice notifying them that you’ve filed for divorce.  However, just because you filed and they received the notice doesn’t mean they will comply.  If they ignore the notice and refuse to sign the divorce papers, you will then have to apply for “default” divorce.  This means the Court and you will move forward in the other party’s absence, and that party is “stuck” with whatever the Judge may decide to do. The other party has a very limited right to become involved in the divorce at that point.

What Is a Default Divorce in NJ?

A default divorce results if a divorce complaint is filed and the spouse receiving the notice (the “defendant”) doesn’t respond to the court within 35 days.  At that point, the filing spouse (the “plaintiff) will file a request for entry of a default divorce judgment against the defendant.  Defaults may not be obtained against members of the US military or legally incompetent people.  Regarding military service, you (or your lawyer on your behalf) will certify to the Court that your spouse is not a member of the United States military.  If your spouse IS in the military, then you must wait for them to come back stateside before proceeding for divorce.

Default Divorce by Agreement

When all other divorce issues have been resolved and both parties have agreed that one spouse will file the complaint for a default divorce, this is a Default Divorce by Agreement.  A benefit is that the defendant/other spouse saves both time and money by not filing an answer or an Entry of Appearance.  In such cases, most often the parties enter into a binding Matrimonial Settlement Agreement, setting forth all agreements on the issues of child custody and parenting time, child support, alimony, division/distribution of jointly acquired marital assets and debts, and payment of counsel fees, mediator fees, appraisal costs, CPA costs, and the like.  After each party consults with separate legal counsel and signs the deal, the landscape is safe for proceeding by default judgment.

Is it Possible to Get a NJ Default Divorce without a Court Appearance?

A default divorce by agreement, without a court appearance, is available in some counties, but not all.  Each allowing Family Court will have specific requirements that you will have to meet after you submit a signed settlement agreement, including a certified statement with answers to question that would have been asked during your hearing – but now must be answered in a sworn document since you will not be there. It is best to have legal counsel finalize the divorce on your behalf, to make sure you measure twice but cut only once.

What if you Don’t Have a Settlement Agreement?  May You Still Proceed on a Default Basis?

It will be your responsibility to serve the notice of the hearing and final judgment proposal (with attached settlement agreement) to your spouse.  If you do not have a settlement agreement, you will have to file with the Court and serve on your spouse a notice of application for child custody and parenting time, child support, alimony, equitable distribution of property (with a statement of assets and debts), and any other relief requested.  For example, as a woman, you may wish to change your last name back to your birth name.  You can accomplish this as part of the divorce, but only if you ask for it in your papers ahead of time.

Notice to the other party should be served at least 20 days before the hearing and you must request a return receipt for mail delivery as proof of service. Simultaneous service by regular mail assures that you may proceed even if the certified mail document is returned unopened.  You will need to bring proofs with you on the day of the hearing or submit them to the Court in lieu of personal appearance if permitted.

Other Options

The No Fault Divorce Option

If you agree with your spouse in a Settlement Agreement to file the divorce under no-fault grounds, to make it easier to get them to sign the divorce papers, then your cause of action will be contractually limited to what you bargained for.  This is an enforceable agreement.

The Contested Divorce

It is rarely true, yet sometimes a party contests the cause of action and will not yield.  In that case, you may either shift the cause of action to a no-fault one, or try the cause of action “as is”.  To insure your ability to proceed, it makes sense to plead alternative causes of action:  Count One is adultery. Count Two is Extreme Cruelty. Count Three is Irreconcilable Differences.  And so on.  In contested divorces on the cause of action, the trial judge will decide the cause of action and any other issues remaining in controversy.  It is extremely rare to have a trial solely on contested grounds of divorce.  We think a Judge would push back in such a case, as judicial resources would be wasted on that enterprise, presuming everything else were settled.

Mediation, Third Party Neutral Attorney, Arbitrator, Collaborative Law

There are Alternative Dispute Resolution procedures that could help resolve cause of action and all other issues that may arise between the parties.  Speak with your lawyer about the uses and wisdom of each.  Having the parties consult with an impartial third-party lawyer for advice, a mediator for facilitative approaches, an arbitrator to decide matters for the parties outside court, or collaborative lawyers to work with the parties and their therapeutic and financial advisors can help you to resolve problems you may face with your spouse — and avoid court.  This can help resolve issues where one party may feel that the divorce process may be unfair to them, or where a power imbalance threatens to make the divorce process protracted and expensive.  This will expedite signing the papers and working out a settlement so that you can successfully divorce and both parties – and their children – may move forward with life.

Conclusion

If you or someone you know has a crisis or concern about family court, divorce, child custody and parenting time, permanent removal of a child from the State, parental alienation, alimony, child support, division/distribution of jointly acquired marital assets or debts, Domestic Violence, adoption, juvenile delinquency, name change, or any related issues, please contact the Kingston Legal Group — now. 

We are conveniently located on Route 27 In Kingston, Central Jersey, just north of Princeton.  Please write or call us for a near-term and reduced fee initial consultation.  We will listen to your facts, explain the law, and help you chart a pathway to economic self-sufficiency and social justice. Call today. You will be glad you did.

Kingston Law Group
609-683-7400