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The divorce process in New Jersey can take two different tracks: settlement or litigation. Determining the one that’s best for you will come as part of your initial consultation with a divorce attorney, as they will make a recommendation about the best way to start the divorce process in your unique situation. There are also two distinct phases involved in getting divorced – first, planning for the divorce; and second, being in the divorce process itself – and both phases apply to both the settlement and litigation tracks.
Phase 1: Planning Your Divorce
In the first phase of the divorce process, you will need to interview and select a divorce attorney who has a specialty certification in family law to ensure you are getting the most accurate advice. Your divorce attorney will help you gather documents and other information that you will need to get ready to start the divorce process. These documents may include financial records, records about your assets and debts, records about your insurances, and records about your expenses. If you have children and are in the divorce planning phase, you will also have to do some future thinking about how your children will be impacted by the divorce, where they will live, and how they will spend time with each parent. And, regardless of whether you have children, anyone in the divorce planning phase will need to do some forward-thinking with the help of their divorce attorney about what they want their financial and housing situations to look like after divorce, and to understand whether those goals and objectives are reasonable under their unique circumstances.
Phase 2: Settlement or Litigation
In the second phase of the divorce process, you will embark on one of two tracks – the settlement track or the litigation track. You can also be on both tracks at the same time – in litigation while also proceeding on the parallel settlement track to resolve your marital issues by agreement. The preferred divorce process track is to enter into a settlement agreement that addresses all issues of your marriage before entering the litigation track, and this agreement will include provisions for custody, parenting time, child support, alimony, and the distribution of all assets and debts.
Not everyone, however, can process through a divorce by negotiating a settlement before litigation. If you are in an abusive relationship or there are circumstances in your marriage that require the court to be available to assist us in protecting your rights – for example, if your spouse withholds support or there are emergent issues facing your children – then litigation must be started right away.
If you are able to enter into an agreement before starting litigation, you will not only reduce your legal expenses, you will also simplify the overall process. Entering into an agreement beforehand allows you to process an uncontested divorce as a simple formality of filing papers with the court, with only one court appearance required – rather than the multiple court appearances and significant legal fees that are often incurred in cases on the litigation track.
If your spouse is resisting the divorce process, or if your spouse is unwilling to negotiate and resolve the issues of the marriage through negotiations between the lawyers involved or at a meeting between the parties and both lawyers, both parties can attend mediation with a third-party neutral mediator to facilitate the negotiations. Mediation in this context – where both parties and their respective lawyers are present – is a very successful way to resolve divorce cases when the lawyers have been unable to gain an agreement between the parties on their own.
However, if you are still unable to resolve your marital issues through direct negotiations, at settlement conferences, or at mediation, then you will have no choice but to enter the litigation track phase of the divorce process by filing a complaint about divorce and starting a divorce action. At this point, your spouse is then served with a copy of the filed complaint, and they then have 35 days to file an answer, or an answer and counterclaim.
Filing for divorce before entering into a settlement agreement should be your last resort, but if you are forced to start the divorce action, then the litigation process has a way of getting people to become more amenable to settlement and reaching an agreement. Of course, even if we need to file for divorce to gain some cooperation, we are always looking for ways to resolve your marital issues through settlement, and thus, you may find yourself on the litigation track while participating in settlement negotiations at the same time.
At DeTorres & DeGeorge, our certified family law attorneys can help you determine the right track for your divorce case. Call us today to schedule a consultation.
