In the state of New Jersey, as with most states, there is only one way to get legally married. The ceremony is up to you and your spouse, but the paperwork is all the same. However, when it comes to dissolution of marriage, or divorce, there are several ways to handle the matter. If you and your spouse are civil, end the relationship on relatively good terms, there is no mutual property or children involved, and can agree to the terms of the divorce, you can opt for an uncontested divorce or a “no fault: divorce. An uncontested divorce requires both parties to work together and settle all matters outside of court. The mutually agreed upon and signed marital settlement agreement is submitted to the courts and finalized.
Unfortunately, in the majority of divorce scenarios, the relationship is not ending on a good note, which makes sense. Even if matters can be handled civilly, mutual property or the involvement of children make it impossible to go through an uncontested divorce. While some states seek to uncomplicate things with a 50/50 law, meaning that anything that comes into the marriage or is acquired during the marriage should be split 50/50 by divorcing parties, the state of New Jersey is an “equitable distribution” state. Equitable distribution means that assets should be divided fairly, but not necessarily equally. These terms can lead to the interpretation of what is fair to differ among parties. This is where the more common, legal divorce methods come into play.
Litigation is what you may think of when you imagine divorce proceedings, and arguing divorce proceedings in divorce court. Fortunately, divorce litigation does not play out in the courtroom very often because of the other divorce methods available. In divorce litigation, a judge makes all the decisions regarding the divorce proceedings. This happens when divorcing couples cannot agree on terms and other divorce methods have failed. This process begins when one party files a divorce complaint with the court, after which the court system sets a schedule for proceedings. Once the process is initiated the courts have the power to issue and enforce orders, set levels of support, and dispose of, or freeze assets, as well as take any other related actions to prepare the case for trial. Litigation may be required in a contested divorce, even when parties are civil, but child custody or finances or property are involved.
Collaborative law is a method of dispute resolution whereby each party retains an attorney, as well as other experts as a case may require, including accountants, mental health practitioners or financial professionals. These professionals are meant to help negotiate the best outcome for all parties involved, without the need for litigation. The parties, attorneys, and professionals then sign an agreement committing to work together, outside of litigation, to arrive at the terms of an agreement. The parties and attorneys commit that they will not commence litigation, but rather, will negotiate the terms collaboratively. If the process is unsuccessful, even with the assistance of binding arbitration, and either party seeks litigation, the attorneys involved in the collaborative process must withdraw and new counsel is acquired.
Mediation is a method of dispute resolution whereby an independent third party facilitates an agreement between divorcees. The mediator does not make any decisions, nor seek to advance or protect either party’s interest, they merely aid the parties in assembling their own agreement, the terms of which the parties decide with or without the advice of their own attorney. Mediation is always a good option because in the throes of divorce emotions run high. Even when couples are capable of dissolving their marriage without vengeance, a neutral third party can help keep negotiations logical and practical for all parties involved. The role of a divorce mediator is to provide feedback for each party and foster a cordial, focused environment for divorcees to make decisions, collaboratively and ensure the wants, needs, and concerns of all parties are heard.
Binding Arbitration is a process whereby both parties present their case to an independent decision maker who personally resolves their disputed issues. Binding arbitration is a middle ground between mediation and litigation. Binding arbitration is an out-of-court divorce option in which the arbitrator functions as a mediator who makes all final decisions. The arbitrator is a neutral third party who cannot seek to advance or protect either party’s interest but will hear the arguments from both sides and make decisions based on all the information and what is best for all parties involved. Arbitration is not typically used when couples are able to agree on matters but is used as an alternative to waiting for a divorce litigation court date to expedite divorce proceedings. If either party is unhappy with the outcome, they will have to take the matter to family court in a litigation hearing.
New Jersey Divorce Methods
Filing for divorce in New Jersey is a fairly simple process, but in addition to understanding the methods to negotiating the terms of the divorce discussed above, you must also understand the methods of filing for divorce. As discussed above, New Jersey is a “no-fault” state. This means that a party can file for a divorce without placing blame or liability on either party. Before filing for a “no-fault” divorce, parties must be separated and living separately for more than 18 months. Once the timeframe has been reached, either party may file for divorce and have it finalized.
Grounds for Divorce
If there is a reason for the divorce other than a mutual dissolution, “no-fault,” it requires a grounds for divorce and one party to take blame or liability. Some common grounds for divorce in New Jersey include:
- Violence or cruelty toward plaintiff or another party that makes plaintiff fear for personal safety
- Deviant sexual behavior without the consent of the plaintiff, including the plaintiff or another party
- Conviction of a crime that resulted in incarceration for greater than 18 months
- Mental illness or insanity that resulted in confinement for at least 24 months
- Desertion from spouse for more than 12 months
If the filing divorcee — plaintiff — accuses the defendant of any of these grounds for divorce and the accusations are founded, the divorce will be granted in the plaintiff’s favor and determination of the fair allocation of assets will lean in favor of the plaintiff. If blame is placed on either party, it may affect alimony, division of assets, and child custody. To contest the allegations and reduce liability, the defendant can offer a counter defense. Some counter defenses include:
- Provocation- used to counter that the plaintiff provoked defendant to act or behave a certain way.
- Recrimination- defense used when plaintiff either engaged in the conduct, or is at fault for the offending conduct being used as grounds for a fault divorce.
- Condonation- is the defense used when the plaintiff knew about the conduct that is now being used as grounds for fault divorce, forgave the behavior, and continued the marriage.
- Connivance- this defense is used against adultery when the plaintiff agreed to extra-marital affairs or participated in the adultery in question.
In cases of fault divorce, it is highly advisable to seek legal counsel regardless of whether you are the plaintiff or the defendant. The outcome of divorce proceedings and the long-term effects on your life are potentially great. Divorce is a stressful time for all parties involved and fighting a legal battle only makes things more complicated. Seek legal counsel you can trust. Bart W. Lombardo Attorney at Law is well versed in divorce proceedings in New Jersey and can help you find the best outcome for your divorce. Contact Lombardo Law Offices for your consultation today!