Uncontested Divorce
By: Bari Z. Weinberger, Esq.
Weinberger Law Group, LLC
There is little question that the entire divorce process is emotionally and financially draining, especially when it continues all the way to a full-blown trial. However, settling a divorce case is not only cost-effective, it will also give the parties the opportunity to move on with their lives sooner rather than later. Each party would then be able to close the book on a difficult chapter in their life and focus on a more positive future.
When parties settle all of the issues in their divorce case, they place the terms of their settlement into a written form called a Settlement Agreement. In most cases, after the parties have signed the written Agreement, the Court will schedule the case for what is known as an "uncontested" hearing date. The case is considered "uncontested" only after their written agreement, detailing the resolution to all of their issues, is signed by both parties and their respective attorneys or the parties have come to a final resolution and are willing to place those terms on the record in open court. The uncontested court appearance is necessary even after achieving settlement because the parties still have to obtain the final Judgment of Divorce document, or divorce decree, so as to conclude the overall divorce process.
When the parties appear at court on the uncontested date, they typically wait in the courtroom for the judge to call their case name. After the case is called, each party takes an oath to tell the truth and the uncontested process commences.
Plaintiff's attorney will likely begin by asking the plaintiff questions, which the plaintiff has already addressed in the Complaint for Divorce, the very first court filing in the divorce matter. The plaintiff will answer questions such as the date of marriage, place of residence, the names and birth dates of their children (if applicable), whether there is a reasonable chance of reconciliation, and most importantly, if the party recalls the grounds for divorce as set forth in the original Complaint, i.e. adultery/extreme cruelty, etc.
If the plaintiff affirmatively states that he/she remembers the grounds for divorce as enumerated in the Complaint and still believes the grounds to be true, then the judge will generally accept the party's statements. Some parties mistakenly believe that there will be a chance to list all of the horrible things that one's spouse did to them, which may or may not have already been detailed in the Complaint. In fact, many clients want to know if this is when a judge can be told about all of the adulterous acts the spouse engaged in, or if he/she can outwardly express to the judge how exactly the spouse was abusive. Every party should know that these details will not be placed on the record in the court, meaning that no one is permitted the opportunity to provide a story or explanation about why it is that the divorce was requested in the first place.
The main reason that these sometimes disturbing details are not shared verbally with the court is easily understandable. The parties have likely worked very hard to settle their case. They have probably spent countless hours negotiating and making concessions to resolve their case as fairly and quickly as possible, and each party has probably moved significantly from an original position. In other words, it is rare that either party will be completely happy with what he/she is walking away with at the end of the day, as each has likely made compromises in order to achieve a final settlement.
It would be counter-productive for each party, after having worked so hard to settle the case, to then be permitted to disparage and belittle their spouse's character in an open courtroom. This would cause nothing but ill feelings and perhaps create more bad blood between the parties. The judge needs to feel comfortable that each party will leave the courtroom with the intention of honoring the terms of the Settlement Agreement. Such might not be a probable result if each party were afforded an opportunity to provide mud-slinging details about the original grounds for divorce. While obtaining a divorce is not always a gentle, harmonious process, the courts do try to preserve what is left of the relationship by prohibiting unnecessary, negative details and comments to be made at the uncontested appearance, which would invite more pain and sorrow. As such, the plaintiff is limited to answering the specific questions asked by that party's attorney.
Once the plaintiff answers questions regarding the Complaint, the defendant may be required to answer similar questions as well, but only if that party filed a Counterclaim at the beginning of the case and wishes to proceed on that ground. It should be understood that the decision to proceed with a Counterclaim is left up to the parties. Some parties take comfort in knowing that their grounds for divorce were accepted by the Court, even when their grounds were not required for the divorce to go through (as only one of the parties' divorce grounds are actually required to obtain the divorce). Either way, if the judge is satisfied with both parties' answers under oath, the judge will grant the divorce.
However, the uncontested process does not end there, as each of the parties' attorneys must then ask their respective clients questions about the Agreement. The following are some examples of the types of questions that the attorney will pose to their client:
- Is the document I am showing you the Settlement Agreement
- Is this your signature?
- Does this Agreement fully resolve all issues between you and your spouse including custody, support and the division of assets?
- Have you had a chance to review the Agreement?
- Do you understand the Agreement?
- Do you think that the Agreement is fair and reasonable?
- Have you had the opportunity to consider all aspects of the Agreement?
- Do you have any questions of me or of the Court regarding this Agreement?
- Is anyone forcing you to enter into this Agreement?
- Have I been your attorney throughout the course of the proceedings?
- Have I answered all of your questions?
- Are you satisfied with the representation that I have provided?
- Are you under the influence of any medications or substances today that affects your ability to understand the prior negotiations or what is transpiring today?
- Do you understand that instead of entering into this Settlement Agreement, you could have had a trial?
- Do you recognize that a trial could have generated different results, some of which may have been better for you and some of which may not have favored you?
- Do you understand that if the Judge accepts this Agreement and makes it a part of your divorce judgment that you thereafter waive your right to a trial?
- Do you understand that this is a permanent waiver?
- Do you intend to honor all of the provisions of the Agreement?
- Do you believe that the terms of the Agreement fairly represent your standard of living throughout your marriage and do you believe that your lifestyle was taken into consideration?
- Do you wish for the Court to accept this Agreement and make it a part of your Judgment of Divorce today?
- (For women only): Would you like to resume your pre-marital surname?
- (For women only): Do you intend to resume your pre-marital surname in an effort to avoid creditors or criminal prosecution? Is your date of birth and social security number accurately type-written on the Judgment of Divorce?
After these questions are answered, the judge will make some concluding remarks and the parties will leave the courthouse with a final Judgment of Divorce, which typically incorporates their already-signed Agreement. This Judgment is the actual divorce decree and should be maintained by the parties in a safe place in case they ever have to prove that they are divorced. One such example where a party might need the divorce decree would be if a woman wanted to change the last name on her driver's license back to her pre-marital surname. In this situation, she would need to show the Department of Motor Vehicles the gold-seal Judgment of Divorce in order to have her license officially changed.
From start to finish, once the parties are initially called before the court for their uncontested matter, the process generally takes a total of approximately 20 minutes. There are some exceptions to the above, such as when defaults occur (where one party does not appear), or when some judges require detailed testimony from the parties regarding their standard of living. Still, for the most part, the uncontested process is a simple means by which parties can divorce. Uncontested divorces enable parties to settle their case as they deem appropriate, rather than having the judge impose decisions upon them.
Certainly, parties would be better off, for instance, deciding what is best for their children and assets, instead of having a judge make those intimate and personal determinations. Settling and concluding a divorce case through uncontested means is, by far, the best way to finalize a divorce. It saves a great amount of money and time, and gives both parties a chance to control their own destiny by concluding the case on their own terms.
To contact Bari Z. Weinberger, Esq.
Email bari@weinbergerlawgroup.com
Our partner, Bari Zell Weinberger, is certified by the Supreme Court of NJ as a Matrimonial Law Attorney. This Certification is achieved by only 2% of the attorneys in New Jersey.
