You have decided you want a divorce – but how do you get a divorce?
Divorce proceedings start with the filing of a Complaint for Divorce usually by an experienced divorce attorney. The party filing the Complaint for Divorce – or the “plaintiff” – must identify the reason or “cause of action” for his or her request for a divorce within the Complaint, be it irreconcilable differences, adultery, extreme cruelty, eighteen month separation, or otherwise. The plaintiff must also list in the Complaint what relief he or she wants the Court to grant in addition to the dissolution of the marriage, including his or her requests for custody, child support, alimony, property distribution, counsel fees, etc.
Generally, the Complaint for Divorce is filed in the county where either the plaintiff or his or her spouse has lived for the past year preceding the filing of the Complaint for Divorce. There are exceptions in certain cases depending on the cause of action alleged in the Complaint.
After a Complaint for Divorce is filed, it must be served upon the other party (the defendant) or counsel for defendant within fifteen days. Once served, the defendant has thirty-five days to respond to the Complaint for Divorce, unless the thirty-five day deadline is extended by mutual consent of the parties.
If the defendant fails to file a response to the Complaint for Divorce within thirty-five days and does not obtain an extension of the filing deadline, then the plaintiff or the plaintiff’s attorney can ask the Court to enter a default judgment of divorce against the defendant.
If the defendant does file a response to the Complaint for Divorce, however, the Court will fix deadlines for the completion of a Case Information Statement, which details the parties’ income, budget, assets and liabilities both during the marriage and currently; the exchange of information and documentation, financial and otherwise; and the completion of expert reports, including but not limited to custody evaluations, real estate appraisals and business valuations, if applicable. This process of exchanging information and expert reports is known as “discovery.”
Discovery can take as little as a few months or as much as a year or more, depending upon the complexity of the case and the issues in dispute.
Throughout the discovery process and/or upon completion of that process, the parties can and often do resolve the issues between them. Their amicable resolutions are memorialized in a written Marital Settlement Agreement addressing all of the relevant subjects, including custody, parenting time, alimony, child support, property distribution, medical insurance, taxes, counsel fees, etc. Following the execution of a Marital Settlement Agreement, the parties are divorced by way of an Uncontested Divorce hearing and a Final Judgment of Divorce is entered, thereby dissolving the marriage.
If the parties are unable to reach an amicable resolution on their own, the Court presents the parties with various opportunities to settle their differences by requiring the parties to attend an Early Settlement Panel hearing, at which time the parties present their respective positions to a panel of experienced but neutral attorneys. The panel then issues confidential settlement recommendations that either party may accept or reject.
In the event the parties are not able to settle at the Early Settlement Panel hearing, the Court refers the matter to Post-Early Settlement Panel Economic Mediation, which involves more intensive settlement efforts involving the parties, their counsel and a divorce attorney experienced in mediation.
If Post-Early Settlement Panel Economic Mediation fails to produce a settlement, the Court often schedules an Intensive Settlement Conference at the courthouse before scheduling dates for a trial. The trial process will be covered separately in a future article.
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