If it looks as if your divorce may be headed toward a trial instead of being able to be resolved through negotiation or mediation, you may be wondering what you are facing. While every divorce differs, the divorce trial process in New Jersey does not. Here’s what you can expect:
Step 1: Filing the complaint
The person who initiates the divorce by filing the complaint first is referred to as the “Plaintiff,” while the non-filing spouse is referred to as the “Defendant.” The purpose of the complaint is to advise the court that a divorce has been filed and what issues are involved (property division, alimony, children, etc.). Finally, the complaint informs the court what the filing spouse would like to be awarded in the divorce.
Step 2: Service/Voluntary appearance
Once the complaint has been filed, the non-filing spouse must be notified of the pending divorce action. This is often accomplished by providing the non-filing spouse with a copy of the complaint along with a document called the “voluntary appearance.” The non-filing spouse should sign and submit the voluntary appearance to the court, which serves as notice that he or she knows the divorce has been filed. By submitting a voluntary appearance, the non-filing spouse can avoid being served with a copy of the complaint by the sheriff at work or home.
Step 3: The answer
Within 35 days of receiving the complaint, the non-filing spouse must file an “answer” with the court. This legal document contains the non-filing spouse’s responses to the allegations contained in the complaint. The answering spouse may affirm or deny each claim in the complaint. He or she may also file a counterclaim if they want to resolve the divorce differently than what the filing spouse has requested in the complaint. The plaintiff then has 20 days to file an answer to the defendant’s counterclaim.
Step 4: Discovery
Discovery is the legal process of exchanging information and documents between spouses that are needed to either come to a settlement agreement or prepare for trial. This process often requires spouses to gather a number of financial documents and to answer questions relevant to their divorce.
Step 5: Mediation
If the case involves child custody and visitation, both spouses must attend a court-ordered mediation session without their attorneys. These confidential sessions with a court-appointed mediator are non-binding. If an agreement is reached between the parents in mediation, it is then turned into a parenting plan.
Step 6: Settlement/Trial
New Jersey family courts strongly encourage divorcing couples to resolve their issues outside the courtroom, either through settlement discussions between spouses and their attorneys or though mediation. If after three rounds of mediation — Early Settlement Program (ESP), Economic Mediation, and Intensive Settlement Conference — the parties still cannot agree, a trial will be scheduled. At trial, both parties will testify before the judge (there are no jury trials in family court). Evidence will be presented, and witnesses may be called to testify. Upon completion of the trial, the court will typically issue its ruling in writing at a later date.
It is important that you do not wait too long to retain an attorney when you are facing a family law issue. Delays can cost you valuable legal rights, and you want to make sure that you have the advice and support you need to make the best decisions for you and your family long after the divorce settlement is reached. Contact us today for your free consultation.