It’s a common misconception that judges make the decisions when it comes to divorce. And you typically have to hire and pay a lawyer to find out the reality of how most New Jersey divorces work.
The fact is the overwhelming majority of New Jersey divorces are settled by agreement between the spouses themselves who sign a “Marital Settlement Agreement.” The Marital Settlement Agreement is typically drafted by the lawyer for one spouse and spells out specific provisions that relate to child custody, parenting time, child support, college costs for children, alimony, and division of the marital assets and debts. The lawyer for the other spouse reviews the agreement and often proposes specific revisions before it’s signed by both spouses and their lawyers.
How does the court get involved?
Either spouse can file a divorce complaint with the court before, during, or after the Marital Settlement Agreement is drafted. And when both spouses agree on the terms in the Marital Settlement Agreement, the court typically schedules the parties to appear in court and briefly give testimony that includes they are each satisfied with the terms of the Marital Settlement Agreement and entered into it freely and voluntarily. The judge then typically signs the Judgment of Divorce. The Marital Settlement Agreement is literally attached to the signed Judgment of Divorce and becomes binding as a court order.
When is the Marital Settlement Agreement typically drafted?
Generally, before the Marital Settlement Agreement is drafted, the parties should have resolved custody and parenting time for their children. Also, both spouses should each be satisfied that they know: (1) how much each spouse earns; (2) which assets are to be divided; and (3) the values of the assets and debts to be divided.
To this end, the parties will typically start by filling out a Case Information Statement (or “CIS”) form, essentially a financial profile. The CIS is considered the most important document in a divorce case. It discloses a spouse’s income, monthly budget, and lists all marital assets and debts. Significantly, without such disclosures, neither party will be able to make informed decisions about the key financial issues.
After the spouses exchange CISs, their lawyers might suggest additional documents be obtained from the other spouse. These might include bank statements, credit card statements, or employment records. By the same token, finding out values for certain assets, like a home or business, might require outside professionals like appraisers or accountants.
The parties can come to an agreement out of court by any or a combination of direct negotiation between spouses or lawyers, divorce mediation, or by collaborative divorce. Or, if a divorce complaint is filed, the court generally requires the parties to attend mandatory settlement procedures before scheduling pretrial and trial dates.
The bottom line? It’s never too soon to get a handle on the marital finances. The more you and your spouse each know about the marital income, assets, and debts, the sooner you can hammer out the terms of your Marital Settlement Agreement.
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