A Basic Overview Of Starting The Divorce Process
By: Bari Z. Weinberger, Esq.
Weinberger Law Group, LLC
Making a decision to start the divorce process is extremely difficult for most people. In addition to being emotionally and mentally unsettling, there is also a large financial commitment involved. Many litigants are frightened to commence the process because it forces them to become more independent and could very well change their lives forever. All of these fears are legitimate and are even expected. Since people depend on their spouse in so many ways, to imagine a future without that person can be difficult to deal with. It is quite common for spouses, currently in a strained relationship, to attend marriage counseling or other therapeutic sessions to attempt to reconcile their differences and strengthen their marital relationship.
Unfortunately, while such efforts are certainly commendable, this is not always a successful remedy. If a person does finally resign themselves to the fact that a divorce is an inevitable reality for them, knowing what to expect from the divorce process could be comforting to some degree. A typical divorce case begins with one party filing the "Complaint For Divorce" with the appropriate court. At the time that the Complaint is filed, the court assigns a docket number to the case so that the court system may thereafter formally recognize the case and fix the case for a procedural track. It should be understood that a case will not go through the court system without having the Complaint filed.
The Complaint document itself is comprised of various elements, such as the addresses of both parties (if the addresses are known), the date of the parties' marriage and place of marriage (generally including information as to whether the ceremony was civil or religious), the names and birth dates of any children born of the marriage, or otherwise adopted, a listing of any previous proceedings in the court, such as prior domestic violence matters, and most importantly, the relevant grounds for divorce set forth by the filing party. There are several grounds for divorce which are recognized in the State of New Jersey, as follows:
- Adultery;
- Desertion;
- Extreme Cruelty;
- Separation;
- Voluntary Addiction to Narcotic Drugs;
- Habitual Drunkenness;
- Institutionalization for Mental Illness;
- Imprisonment;
- Deviant Sexual Conduct; and
- Irreconcilable Differences.
New clients often ask if they can use "irreconcilable differences" as their grounds for divorce. New Jersey did not recognize irreconcilable differences as a ground for divorce for years; however, as of January, 2007, the State of New Jersey passed new legislation which recognizes Irreconcilable Differences as a ground for divorce. The party asserting the ground of Irreconcilable Differences need only set forth that there has been a breakdown of the marriage for a period of six (6) months.
The ground of Separation has a waiting period before it can be used in the Complaint. If a potential divorcee is willing to live separate and apart from their spouse for at least the mandatory 18-month period before filing a Complaint for Divorce, then they can use Separation as a ground for divorce. However, if the parties continue to reside together in the marital home during any portion of that 18-month period, then the grounds of Separation would not be applicable.
A significant number of litigants tend to use "Extreme Cruelty" as their ground for divorce. Despite the harshness of the wording, Extreme Cruelty may very well be one of the mildest grounds that a party could file under. It is really up to the party filing for divorce to itemize what comprises the "cruelty" which they were subject to by their spouse. For instance, Extreme Cruelty could very easily be described by one party as daily physical and verbal abuse by their spouse, along with multiple pages of details included in the Complaint for Divorce. In contrast, Extreme Cruelty could also be used by a filing party if their spouse was not being emotionally supportive for the past several months. The Extreme Cruelty ground for divorce may be as expressive or understated as one would like it to be. However, it must offer enough detail to convince the judge that it would be unreasonable to expect the filing party to continue to live with and remain married to their current spouse. Sometimes a party elects to file their Complaint with more than one ground for divorce, such as Adultery and Extreme Cruelty. While this is permissible, it should be noted that filing more than one ground will not necessarily have any additional weight in the outcome of the case. Many clients, knowing that these divorce documents are a matter of public record, (meaning that their children, for instance, could access them at any time to learn what went on between their parents), prefer to keep the content of their documents as gentle and peaceful as possible. Other clients, however, see the Complaint for Divorce phase as a means by which to vent their anger and frustration. These parties may find it therapeutic to document every intricate detail into written court papers. Regardless of which method a party decides upon, it is important to remember that the amount of detail included in the Complaint does not necessarily impact the judge's decision regarding custody, alimony or even distribution of assets. The primary significance of the ground for divorce is to permit the divorce itself. The Complaint document is therefore a matter of personal preference and offers clients the option of disclosing or not disclosing extremely personal details about themselves and their spouses.
There are many procedures put in place to protect one or both of the parties. The "Certification of Insurance Coverage" is a prime example, which must be filed along with the Complaint For Divorce in every case. This document is essentially an affidavit provided by the filing party advising what insurance coverage is in existence at the time the Complaint is filed with the court. This affidavit must include detailed information regarding relevant medical or other health related insurance, life insurance policies, homeowners or renters insurance, automobile insurance, disability insurance or any other active insurance policies. The information required is generally the name and address of the insurance company, applicable policy numbers, the name of the person insured, names of beneficiaries and dates of expiration or renewal of the policy. The most significant fact that must be included in the affidavit is whether or not the policy has been modified or canceled within 90 days of the filing of the Complaint, with descriptions of the actual changes or cancellations. The Certification of Insurance Coverage provides a safety mechanism to protect parties using the court system for their divorce process from having any of their insurance coverage altered or terminated.
Another example of security devices is the "Confidential Litigant Information Sheet". This form must also be filed with the Complaint for Divorce. Included in this document is information such as date of birth, place of birth, social security number, driver's license number, auto license plate number, mother's maiden name, children's social security numbers and medical information. The form was created to prevent identity theft, and after this detailed information is entered on a secure database, the hard copy should be destroyed from the public file. Once the party seeking divorce has filed the initial Complaint, Insurance Affidavit, Confidential Litigant Sheet, and CDR Certification (a document signed by both attorney and client that represents to the court that the attorney advised the client about the available alternative dispute resolution options) that party shall be designated as the "plaintiff" throughout the balance of the divorce proceedings. Thus, the other spouse shall always be considered the defendant. Many people about to start the divorce process tend to believe that they must race to file first so that they may be named as the plaintiff throughout the case. While it is true that the first to file for divorce is always designated as the plaintiff, it is essentially the only meaning that these terms have in the family court for purposes of divorce proceedings. Those who believe that being named plaintiff is more advantageous are simply misinformed. While it may be true in criminal murder cases, where the defendant is the accused standing trial, a divorce case is far different. There is, in fact, no negative connotation associated with the label "defendant" in a divorce action.
After the plaintiff has successfully filed a Complaint and all relevant parts, thereby fixing who will be known as Plaintiff and Defendant throughout the case, they must then serve copies of these documents upon their spouse. If the defendant-spouse is represented by an attorney, then that attorney may accept service (or delivery) on behalf of their client. If the defendant does not yet have an attorney or if the defendant will be representing himself or herself, then the Complaint documents must be served directly upon the defendant. This service is typically accomplished by means of a process server.
Many people envision a burly sheriff's officer, dressed in uniform, causing a scene at the defendant's place of business while delivering these documents. A more accurate scenario would be for a person dressed in plain clothes, most likely not a sheriff's officer, delivering the documents to the spouse (usually at home or at work), both respectfully and discretely. Sometimes, a process server is not required at all if for example the defendant agrees to personally sign a document that directly acknowledges receipt of service. Upon the defendant receiving the Complaint documents, the defendant may file a response with the Court, such as an Appearance, an Answer or an Answer and Counterclaim. The Appearance essentially acknowledges receipt of the Complaint and advises the court that the defendant will participate in the case. The Answer simply admits or denies the allegations set forth in the plaintiff's Complaint for Divorce. The Answer and Counterclaim gives the defendant the opportunity not only to admit or deny the plaintiff's allegations, but also to provide separately pleaded grounds for divorce. Therefore, the Counterclaim is the place where the defendant may state that he or she would also like a divorce due to specific grounds set forth in the Counterclaim, such as Extreme Cruelty or Adultery on the part of the plaintiff. However, it is important to note that only one party's grounds for divorce are required to actually obtain the final divorce decree. In other words, after the plaintiff files a Complaint, the defendant need not file a Counterclaim, as only one ground for divorce (meaning the Complaint OR the Counterclaim) is needed to actually obtain the divorce. Both spouses do not have to actively proceed under specified grounds. If the defendant decides not to file a Counterclaim, because the plaintiff's Complaint is enough to get the divorce, the defendant may still participate in the divorce process. If the defendant believes that the plaintiff is guilty of any of the grounds for divorce set forth above, then a Counterclaim may be an appropriate filing in response to the Complaint. It should be noted that the defendant will also be required to file a Certification of Insurance Coverage, a Confidential Litigant Information Sheet and CDR Certification with the Counterclaim.
If the defendant decides to file a Counterclaim against the plaintiff, it is expected that the plaintiff will then Answer the Counterclaim allegations with admissions or denials, as the defendant has itemized them. Once all of these filings are completed with the court, the parties are then given an opportunity to proceed with the discovery phase of the case. Overall, the process of starting the divorce is a simple one for attorneys in practice, as the Complaint and accompanying documents are not complex to prepare. Still, making the decision to file for divorce can be extremely emotional for clients, as it marks the beginning of the end of their marriage, a reality that can be difficult and painful for some, or liberating for others.
To Contact Bari Zell Weinberger:
Email: bari@weinbergerlawgroup.com
