There are generally two types of people who come in for a divorce consultation: The first isn’t sure they really want a divorce, and the second wants it done yesterday. The unifying question between the two groups is always, “How long does a normal divorce take?” Unfortunately, this is not an easy question to answer because every case is different, and the process of divorce itself may differ based on each individual set of circumstances.
The process of divorce
The first step in the divorce process in New Jersey is making the emotional decision to leave your spouse. There is often a great deal of emotional work required to make this painful and difficult decision. For many people, the next step in the process of divorce that is experienced is the physical part. When you and your spouse separate and live in different places, you’ve begun the physical divorce. It takes time for this stage to settle in because the spouse who moved out of the marital home may need to return to get belongings and to divide household items throughout the divorce process and the months that follow it. The legal divorce is completed once you receive your divorce decree or judgment. Many people assume this is the end of the divorce, but there is often more to come.
Who files first?
People often wonder if there is a benefit to being the party to file for divorce first. The answer is simply no—you do not get an advantage in a divorce because you were the party to file. Both parties are entitled to put their pleadings before the court. The only difference is that one party will file the complaint for divorce, outlining what relief they are seeking.
The complaint for divorce includes basic information about yourself and your spouse, including the reason for your divorce, which is generally the New Jersey “no fault” basis of irreconcilable differences. The complaint for divorce also includes your requests for relief, such as alimony and child support. In some instances, you may wish to try to resolve your case before filing for divorce so that you are not on the court’s clock, and instead reach a resolution in your own time. However, this may not be appropriate in all cases, and it’s necessary to file the complaint with the court so that you can get relief as needed.
The other party, once they have been served with the complaint, has an opportunity to respond to the allegations contained in the complaint and can also file a counterclaim in which they outline what they are seeking.
Complaint for divorce
Once a party files a complaint for divorce, you are on the court’s clock. After being served with a complaint, the defendant (in divorces, this is the person who did not file the complaint) has 35 days to file an answer. If they do not do so, the plaintiff—or the moving party—can ask for a default hearing to move the divorce forward. If the defendant files an answer within the time period, the case progresses to a case-management conference, or the scheduling of future court events and deadlines for discovery and expert reports.
Discovery is the formal process of exchanging information about various accounts, houses and vacation homes, and other property that accrued during the marriage. As part of the discovery process of a divorce, you and your spouse will need to exchange financial statements. This is necessary not only to determine spousal and child support, but also to determine what is necessary to divide in equitable distribution. Retirement accounts, such as pensions, 401k accounts, and IRAs are all subject to equitable distribution, and the marital portion—the amount that accrued in each account between the date of marriage and the filing of a complaint for divorce—is to be shared by the parties.
An expert report may be needed in the event that there’s a dispute about custody or if an appraisal of a property or pension is necessary; however, they are not needed in every case. These pieces of the New Jersey divorce process are intended to provide both parties with the information necessary to them to either reach a settlement or be prepared for trial.
Early settlement panel
Following discovery and the exchange of expert reports, you, your spouse, and your respective attorneys attend an early settlement panel (ESP) at the courthouse. During this meeting, the parties each present their settlement positions to a panel of neutral matrimonial attorneys who offer an opinion as to what they believe the judge would order at trial. This is intended to aid in reaching a resolution of the divorce. Following ESP, you will attend mediation and then additional court dates aimed at providing more opportunities to reach a resolution. Finally, if you are unable to settle your case, you will go to trial.
Other orders may be needed
While you may agree during the process of your divorce that you need to divide the retirement accounts—and even if you agree to a specific amount you are to receive—you will still need an additional order, known as a QDRO, in order to divide the accounts. After the divorce is finalized, your attorney will assist you in completing the necessary paperwork to have the QDRO drafted. Once it is reviewed by your attorney and signed by yourself and your spouse, it will be submitted to the court for the judge’s signature. When the signed copy is received, your attorney will forward it to the plan administrator for each retirement plan, and the accounts will be divided. This does not mean that you automatically receive the money, though; it is simply segregated from your spouse’s share and can be moved tax-free to a retirement account in your name. In order to withdraw the money, you will need to take the proper steps and pay any penalties and taxes associated with the withdrawal.
Length of time of divorce process in NJ
Generally, the courts want divorces to be over—from filing of the complaint to final resolution – within a year. At any point during this process of divorce, parties can reach a settlement. In fact, very few cases actually proceed to trial. Recently, many attorneys have been encouraging their clients to try to resolve their matter and engage in informal discovery prior to filing a complaint for divorce. This often aids in keeping costs down because you may be able to resolve the matter without having to schedule multiple court dates. However, there can be downsides to this as well, as it can allow a party to drag out the case because there’s no fear of the court intervening to prevent it.
Lingering stages of the divorce process
Once you are legally divorced, you may still have things to work through to become completely free. The financial divorce happens after the legal divorce is completed, when all of your assets and debts are distributed in accordance with your divorce decree. If you have real estate that is being sold or a pension to divide, it may take many months for this to wrap up. The religious divorce is a process you may or may not decide to go through, but if you do, you will need to work with your church or temple to follow the necessary procedures. The emotional divorce is the most difficult to complete, and it may take you months after the physical and legal process of divorce to finally feel you are truly and completely divorced.
If you are considering a divorce and would like additional information regarding the divorce process in New Jersey and how long you can expect it to take, contact DeTorres & DeGeorge today to schedule a consultation with one of our attorneys.