What does it really mean when we talk about “going to court” in divorce? So little is known about this area, prompting much speculation, rumors, and unease. This is why the thought of getting a divorce and “going to court” often evokes much fear and anxiety for divorcing spouses. If you do choose to “go to court” in New Jersey, what you can expect in general is this.
The court action is initiated when one spouse (or his or her lawyer) files a legal document, called the Complaint for Divorce, with the court, along with certain required documentation. In my experience, most Complaints for Divorce are filed on the grounds of “Irreconcilable Differences.” This means that there have been irreconcilable differences for the past 6 months and that there is no reasonable prospect of reconciliation.
Whoever files the Complaint is designated as the “Plaintiff.” The other spouse is designated as the “Defendant.” Unfortunately, it is these initial designations that cast an adversarial overtone over the process. In New Jersey, filing the Complaint for Divorce generally effectively terminates the marriage for purposes of identification and valuation of marital assets and marital debt.
Once the Court assigns the case a “docket number,” the Plaintiff will need to properly “serve” a copy on the other spouse (or his or her attorney). After the spouse receiving a copy of the Complaint files the appropriate responding legal document, the court will designate deadlines for different forms of “discovery” (exchange of information) so that the marital assets and debts can be identified and valued. This can be a time where one or both spouses might refuse to provide critical financial information about income, assets and debts, and subpoenas may be served, attorney letters written back and forth, or motions” filed. Parties file “motions” with the court when they cannot agree on how to resolve certain issues that arise and they seek an Order from the Court. For instance, when one spouse seeks to compel the other to provide temporary financial support, he or she may file what is called a “pendente lite” motion. This is an application to the court for an Order directing temporary relief until a Final Judgment of Divorce is entered. The whole process can become draining, both emotionally and financially. Also, after the time period allowed for “discovery” ends, the parties and their attorneys are typically required to appear in court to meet with 2 impartial attorneys who volunteer their time to serve on an “Early Settlement Panel” and recommend a potential resolution of contested financial issues. In the event an agreement is not reached as a result, both spouses are typically required to attend economic mediation. If there is still no settlement reached, the court will typically schedule an “Intensive Settlement Conference” where the spouses and their attorneys conference at the courthouse and the assigned judge might offer suggestions to the attorneys to help reach an agreement.
At any time during the court process, it is common for the spouses, typically with the help of their lawyers, to negotiate and prepare a divorce agreement. This is a comprehensive legal agreement that resolves all of the outstanding issues in your matter, and ultimately becomes literally attached to the Judgment of Divorce and binding as a court order.
If there is still no agreement, however, as a result of the “Intensive Settlement Conference,” it is not unusual for there to be a holding pattern as the parties wait for a trial date. In New Jersey, this wait can be substantial given that hundreds of cases remain “backlogged” with well over 50 judicial vacancies over most of the past 2 years and judges working long hours while carrying substantial caseloads. (Analysis of the New Jersey Budget, FY 2015-16).
What you might not realize, however, is that you have a say in how the process will unfold for you and what you will achieve when the judge signs that Judgment of Divorce. After respectfully allowing yourself to experience the negative emotions that commonly arise, you can start with deciding what is most important to you and how you envision life after the divorce – for yourself and your children.
Then take alternate routes and be creative. For example, what can you do to increase your leverage in negotiating a divorce settlement? What interests does your spouse have and what might he or she want to avoid? You might also consult with a Certified Divorce Financial Analyst (CDFA) or trusted Certified Financial Planner to determine how much money you will need each month to make up for any shortfall in your anticipated expenses (which you should carefully evaluate with the help of your financial planner) to get you through to retirement or age 59 ½ when you can start drawing down on your retirement funds without penalty. Then speak with your lawyer about settlement options. Or if communication with your spouse is difficult or non-existent, you might try setting clear boundaries and enforcing them, perhaps guided by a trusted therapist or coach.
It’s all about staying in control over what happens during and after the divorce. It’s your future and your children’s future that will ultimately reap the rewards.