Regardless of which spouse instigated the divorce, most clients do not come in to my office happy to be getting a divorce. Usually, most clients are skeptical until the end of the process that everything really will be “ok” or even great post-divorce. Social constructs and the legal process have definitely made it a very unpleasant experience for most. Who knows, you may be the exception though. Just maybe you and your spouse have decided to amicably come to an agreement, are both happy for each other to be moving on and just require a few little squabbles addressed, negotiated, settled, and both of you can move on and live happily ever after. While I hope you are the exception, if you are reading this blog you are probably getting geared up for and learning what to expect during an unpleasant journey.
There are many different avenues you can take to get divorced depending on your own unique set of circumstances, such as mediation, arbitration, or having attorneys negotiate a proper divorce settlement. However, for purposes of this blog post, I am going to assume you will be taking the traditional divorce route of finding attorneys, filing initial documents, serving or being served with those documents, and beginning the legal process of getting a divorce – litigation style. This post is to give you a general overview of what to expect during the divorce process in both New Jersey and New York. Don’t worry though, all possible divorce routes, as well as separate in-depth analysis of the process in New York and New Jersey, will be discussed in separate blog posts so you have all of your options, and are well educated on the what to expect in the state you will be filing in.
The Divorce process is a roller coaster of epic proportions. If you are the one instigating the divorce, you slowly start to coast down the rails towards your first hill. You literally coast through a haze of mixed emotions in search of information, a divorce attorney, and doing your best to put together the pieces of the puzzle necessary to file for divorce. Once you commit to an attorney, you start your initial ascent up the first hill of gathering information your attorney needs.
In New York, your attorney will provide you with a Statement of Net Worth (SNW), where you will fill in detailed information about all of your assets, income, expenses, debts, and other required information. You will attach pay stubs, tax returns, W2 forms, and any other documents your attorney deems relevant to attach thereto. Same is the case in New Jersey, except the document is referred to as the Case Information Statement (CIS). These forms, and the documents attached, are arguably the most important documents submitted in the entire divorce process, painting a clear picture for counsel, the court and any individual having any bearing on the outcome of your divorce matter, of the financial landscape of the household and needs of the respective parties.
Of course, in certain circumstances emergency relief is required. For example, if your spouse cuts off your access from bank accounts and your ability to support yourself and/or your children. In emergency circumstances you must reach out to your attorney immediately and let them know the intricate details of your emergency. Ideally, after picking the proper strategy to take based upon your wishes and your attorney’s advice, your attorney will either reach out to opposing counsel (the attorney representing your spouse) if it is safe to do so to resolve the matter or file an emergency motion before the court seeking the necessary assistance of the court.
Assume for the purposes of this article, that there are no emergencies and we are back on the divorce roller coaster. In fact, all initial documents have been submitted, served, and the financial documents (SNW and CIS) previously discussed have been exchanged and filed with the Court, what next?
In New York, One of the attorneys, usually the attorney of the initiating spouse (Plaintiff), will file a request for intervention and demand for a preliminary conference, and have the same served on the answering spouse’s attorney (Defendant). If one or both spouses are not represented by an attorney they are considered to be a Pro Se Litigant and must be served directly with all documents. There after a preliminary conference will be scheduled where all parties and counsel appear for a conference and to fill out a preliminary conference order laying out an initial road map for the case, including a discovery schedule, any interim/temporary support or relief ordered by the court, any agreements between the parties, etc.
In New Jersey, once an Answer is filed with the Court, the court schedules a first case management conference. Which has the same effect as the preliminary conference in New York. In both states, once the conference is complete, the following court date will be chosen.
Next, in both New York and New Jersey, you will embark on the discovery process. Attorneys for both spouses will draft discovery demands (Interrogatories and Document Demands) tailored to the specifics of your case filled with questions seeking specific information and requests for documents. This is often a very arduous process, requiring both the client and attorney to do much work in providing the appropriate information and obtaining the documents requested. This process can take much time and be extremely costly. However, unless you and your spouse agree to forgo this process and come to an agreement without it, it is a required step in each state. In fact, we always recommend that some minimal form of discovery be done even if the parties are coming to an agreement so that the agreement is based on fully exchanged information and knowledge. Thereafter, if it is found one spouse did not disclose pertinent information you at least have recourse to have the agreement vacated or modified.
The responses to the discovery demands are sworn statements, made under oath, and therefore must be honest and complete. It is imperative to have an experienced attorney assist you with the discovery process in order to make proper objections and guide you as to what you must provide, what you must obtain, the level of detail you must answer with, and so on. If one party does not cooperate with discovery, a Motion may be made to the court to preclude them from providing any such evidence at time of trial and the other party and their attorney may face sanctions and other penalties, as the court deems appropriate. Bottom line, the court does not appreciate its orders being violated and will not look favorably on the side trying to skirt around the system.
Keep in mind that this entire time, depending on each spouse’s goals, the attorneys and parties may be and oftentimes are negotiating in an effort to come to an agreement without having to go the trial route. Also, during the roller coaster ride there may be further ups and downs down the road. Depending on the issues in your case, custody evaluations may need to be done, certain properties and assets may need to be valued and appraised, experts may need to be hired and their reports obtained with regard to assets, parental abilities, mental well being of the parties, the family dynamics, the employability of the parties, etc. All of this takes time, patience, and money.
In New Jersey, unless settled during the initial discovery process, divorces are schedule to go before an Economic Settlement Panel. This is a panel of two or three attorneys who are all experienced in the field. They get paperwork to review regarding your matter, including each side’s respective positions, the CIS, the attached documents and any other documents each party and/or attorney sends. They form an opinion of how the case should be settled and/or inform the parties how they believe the Judge would decide on all economic (equitable distribution) issues which are to be resolved in your case. If the case settles, the Judge is made aware of the same and it is put onto the record. IF not, back to the drawing board you all go.
In New Jersey, once discovery is complete, and if no agreement is reached following the Economic Settlement Panel, the court will order the parties to attend economic mediation. The court or attorneys picks a neutral mediator off of a list of approved mediators and orders the parties to meet with that mediator. The first two hours of mediation are free (one is devoted to the mediators preparation and one hour of in office mediation time). If the parties want to continue further than the first two hours with the mediator in an effort to settle the case those hours are privately paid for by the parties according to the court’s order of how much they should each pay. More often than not, in an effort to get the parties to settle and neither party an unfair advantage of simply going through the motions racking up fees for the other party, the court mandates that each party pay 50% of the mediator’s fees. Thereafter, if mediation falls through and there seems to be no further hope of settlement, the court may order the parties to attend an all day intensive settlement conference in the court house. During such intensive settlement conference the parties and counsel will be in court all day trying to come to a settlement during which the judge will try to weigh on issues, specify issues and provide as much assistance as necessary to help the parties attain a settlement agreement. Everyone’s main goal is avoiding a lengthy and expensive trial. However, if all of the court’s mandated opportunities to settle are unsuccessful the court will set trial dates and preparation commences on both sides.
In New York, there are no such panels, ordered economic mediation, and/or intensive settlement conferences. The parties are permitted to retain a private mediator and the court will occasionally schedule conferences and settlement conferences where the judge or court attorney/clerk of that judge will do their best to foster a settlement, but nothing like what New Jersey provides in an effort to help the parties achieve an amicable resolution.
In both New York and New Jersey, prior to trial the court requires certain documents and notices be submitted to the court. The specifics of each state will be discussed in later articles.
At trial, both parties have an opportunity to present their case, call witnesses and present evidence to the Court. Ideally, both attorneys are well versed in the evidence laws of the state, case law surrounding each issues and applicable statutory laws of the state where they practice and are able to present their client’s side of each issue. However, the court does not know either side personally and will be the ultimate decision maker regarding very personal factors of the household, such as how much time each party gets to spend with the child(ren), how the children are raised, what is the process of choosing activities the child(ren) can participate in, who makes medical decisions, educational decisions, etc.
Also, it must be mentioned that during the process in both New York and New Jersey certain experts may be necessary to assist in finalizing the case, including but not limited to, real estate appraisers, forensic accountants, therapists, child custody evaluators, medical examiners, etc. these experts are all privately paid, provide reports and may later be called as witnesses. Some of the experts can be ordered by the court and others will be privately hired pursuant to your attorneys counsel. This will add to the expense you may incur or your spouse may incur during the divorce, but are often necessary to fill in crucial puzzle pieces necessary to come to an appropriate resolution of your case.
In our opinion, at HD Family Law, we believe the spouses are the ones best situated and able to make important decisions regarding their future lives and those of their children and should do their best to reach an amicable or at least acceptable settlement agreement. Also, trials are extremely hard work, require hours and hours of preparation, require mudslinging and arguments, and ultimately destroy any relics that might have been left of your relationship and your pocket book in the long run. While we never shy away from litigation if necessary to protect the rights and wishes of our clients, we always do our best to achieve a fair and reasonable resolution our client approves of and is pleased with in an effort to avoid a costly and emotionally draining trial, if at all possible.
Remember, we want every client to finish the divorce process claiming “Nothing says a good day like a divorce”.