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Mediation is a dispute resolution process in which an impartial third party – the mediator – facilitates negotiations among the parties to help them reach a mutually acceptable settlement. The mediator does not make a decision about the outcome of the case. The parties work toward a solution with which they are comfortable.
Couples who seek divorce mediation in New Jersey need to be aware of the NJ mediation program, which was developed by the Supreme Court. Mediators participating in the program have been approved for inclusion on a roster by a subcommittee of the Committee on Complementary Dispute Resolution, after meeting training requirements set forth by the Court.
In order to file for a divorce in New Jersey, either spouse must have been a resident of the State for at least one year prior to the filing of the action. The only exception to the one-year residency requirement is when the grounds for divorce are for adultery. In cases of adultery the requirement is that at least one spouse must be a New Jersey resident. In New Jersey there are eight grounds or causes to file for divorce. The three most popular grounds are extreme cruelty, no-fault separation, and adultery. Remember, the grounds of extreme cruelty are just a “term of art” and it does not mean that your spouse was extremely cruel.
No-Fault Divorce Cause of Action
Separation is New Jersey’s only no-fault ground for divorce. To qualify under this grounds, both the husband and wife must have lived separately, in different houses (not only different rooms) for a period of at least eighteen consecutive months. Moreover, in order to qualify for the no fault divorce, there must not be a reasonable expectation of reconciliation.
FAULT DIVORCE CAUSES OF ACTION
Extreme cruelty includes any physical or mental cruelty which makes it improper or unreasonable to expect that individual to cohabitate with their spouse. N.J.S.A. 2A:34-2(c). The courts are very liberal as to what type of conduct constitutes extreme cruelty.
The courts have held that “adultery exists when one spouse rejects the other by entering into a personal intimate relationship with any other person, irrespective of the specific sexual acts performed; the rejection of the spouse coupled with out-of-marriage intimacy constitutes adultery.” New Jersey Court Rule 5:4-2 requires that the plaintiff in an adultery divorce case, state the name of the person with whom the offending conduct was committed. This person is known as the correspondent. If the name is not known, the person who files must give as much information as possible tending to describe the adulterer.
The willful and continuous desertion by one party for a period of twelve or more months, and satisfactory proof that the parties have ceased to cohabit as man and wife constitutes desertion under N.J.S.A. 2A:34-2(b). It is important to note that the parties may live in the same house. The crucial element here is “as man and wife.” Thus, desertion may be claimed after twelve or more months of a lack of sexual relations.
Under N.S.J.A 2A:34-2(e), addiction involves a dependence on a narcotic or other controlled, dangerous substance, or a habitual drunkenness for a period of twelve or more consecutive months immediately preceding the filing of the complaint. The evidence must show that the use of alcohol and drugs was persistent and substantial. This is not a common ground for divorce.
When one spouse has been institutionalized for mental illness for a period of twelve or more consecutive months subsequent to the marriage and preceding the filing of the complaint, institutionalization is a ground for divorce under N.J.S.A. 2A:34-2(f). The primary issue for this ground for divorce is whether or not the spouse is able to function as a working partner in the marriage.
Imprisonment as a ground for divorce occurs when a spouse has been imprisoned for eighteen or more months after the marriage. N.J.S.A. 2A:34-2(g). Moreover, the parties must not have resumed cohabitation after the imprisonment.
Deviant Sexual Conduct
Deviant Sexual Conduct occurs if the defendant engages in deviant sexual conduct without the consent of the plaintiff spouse. N.J.S.A. 2A:34-2(h).
THE DIVORCE PROCEDURE
The Superior Court of New Jersey has jurisdiction over all causes of divorce, when either person is a resident of New Jersey at the time the action is started. There is a twelve-month residency requirement. Furthermore, the jurisdiction of the court over the defendant is fully established when the defendant files an acknowledgment of service of process, enters an appearance, or files an answer to the complaint.
The filing of a divorce complaint starts the divorce case. A complaint for divorce is filed in the county in which the plaintiff lived when the cause of action arose, or if the plaintiff was not then living in New Jersey, the county in which the defendant was living when the cause of action arose. If neither party was living in New Jersey when the cause of action arose, then the complaint shall be filed in the county where the plaintiff presently resides, or in the county where the defendant is living if the plaintiff no longer lives in the State. The requirements regarding the content of the complaint are described in the New Jersey Court Rules, Rule. 5:4-2, and require a statement as to the essential facts which form the basis for the petition for divorce (see above listed causes of action), the addresses of the parties, and in cases involving a child, the address, date of birth, and information as to where and with whom the child resides.
In a divorce action where adultery or deviant sexual conduct is alleged, the pleading must also name the adulterer, or the correspondent. The complaint shall state the name of the person as the correspondent with whom such conduct was committed, if known, and if not known, shall state available information tending to describe the said person, including details of the time, place and circumstances under which acts or series of acts were committed.
A filing fee is required at the time of filing of the complaint for divorce with the court. If there are children, then the parties also have to pay a fee to attend a parenting education seminar.
Answer, Answer and Counterclaim or Appearance
An answer is the defendant’s written response to the plaintiff’s complaint in the divorce case. In conjunction with the defendant’s answer, the defendant may file counterclaims against the plaintiff. A defendant is required to file the answer and/or counterclaim(s) within thirty-five days of receiving the divorce Complaint. Alternatively, the defendant may file an appearance governed by R. 5:4-3(a) with the court, where the defendant is not disputing the claims in the complaint.
Answer to Counterclaim
If the defendant files a counterclaim, the plaintiff is permitted 20 days in which to file any responsive pleading.
Case Information Statement (CIS)
The Case Information Statements also known as a CIS is the most critical document in a divorce case. Rule 5:5-2 requires both parties to file and serve CIS’s in all contested family actions where there is any issue as to custody, support, alimony or equitable distribution. The primary purpose of the CIS is to identify all assets and liabilities (whether subject to division or not) of the party, like the income picture, shelter, transportation and personal expenses of that party. Each party must file their respective CIS within 20 days after the filing of the answer or appearance.
The parties’ tax returns, their last three pay stubs, their pension statements, and their mutual fund and stock statements should also be attached as exhibits to the CIS. The more comprehensively the CIS is prepared, the easier it will for the ESP Panel and the court to assist the parties to settle the case.
Court Management of a Divorce Case
Once each party has filed his or her CIS, cases are separated into one of four categories for purposes of case management: priority, complex, expedited, or standard. Alternatively, the parties may agree upon a designated track.
Case Management Conferences
Within thirty days after the filing of the last pleading, the court will schedule a case management conference that may be held via a telephone conference. The purpose of the case management conferences is to address discovery timeliness and ultimately determine a trial date if necessary to be determined based upon the case’s assigned track.
In Middlesex County, the parties and the lawyers are required to appear in person at the case management conference. If the case is not that complicated, many times the case can be settled at the case management conference, with the assistance of the judge. This can save the family thousands of dollars in legal fees. However, most other counties besides Middlesex County, handle the case management conferences via a telephone conference.
The discovery part of a divorce case is in many cases the most important part of the divorce. The purpose of discovery is to enable the parties to ascertain what assets each party has, and what constitutes the marital estate.
New Jersey Court Rule 5:5-1 allows for discovery including interrogatories, depositions, production of documents, requests for admissions, and copies of documents. The time lines for conducting discovery are held at the Case Management Conference. Discovery can make a divorce very expensive. It is time consuming, and it can really create a lot of billable hours. If at all possible, the parties should try to reach a reasonable agreement, to avoid all of the expense of conducting discovery. However, this is easier said than done.
Request to Enter a Divorce by Default
If the defendant fails to file an answer or an appearance in a divorce case, then the divorce is defaulted. This means that the person has “blown” his chance to respond or contest the divorce. A request for a default against such a party is governed by R. 4:43. This rule requires the party requesting entry by default to make a formal written request for the entry of the default, supported by the attorney’s affidavit. The affidavit shall explain the manner of service of the complaint upon the defendant, the date of service, and that all time periods in which the defendant may file a pleading have expired. The request to enter a default must be filed together within six months of the actual default. The notice to request a default must also be served on the defaulting spouse.
Please keep in mind, that if there is a default, this does not mean that the case is over. If a spouse is seeking equitable distribution, alimony, child support or any other relief, then a process known as “filing a request for equitable distribution” must be filed.
When equitable distribution, alimony, child support or any other relief is sought by the plaintiff, a notice of application for equitable distribution pursuant to R. 5:5-2 is required to be filed before the entry of default. This notice must be filed and served upon defendant twenty days prior to the hearing date and must include the following:
Notice of the trial date,
Statement of the value of each asset,The amount of each debt sought to be distributed,
A proposal for distribution,
A statement whether plaintiff is seeking alimony and/or child support and, if so, the amount, and
A statement of any other relief sought.
As a result, the moving party must still attend court in order to obtain a divorce by entry of a default. The spouse must also bring a certificate of nonmilitary service verifying that her soon to be ex-spouse is not in the military. The courts do not want spouses to be divorcing their ex spouse while they are in the military overseas, and possibly in combat somewhere.