AN INFORMATIONAL ROADMAP
The purpose of this brochure is to provide you with a roadmap of what you can expect during your divorce litigation, the mechanics of the proceedings, and to set forth what you can expect of our law firm and what our law firm will expect of you. It is by no means an exhaustive recitation of divorce law, but should help answer some of the general questions that you may have.
PROCEDURE AND CHRONOLOGY
Everyone’s individual case varies and for any number of reasons, including court congestion, your case may take a long time to conclude. What I would suggest is to mentally prepare yourself for a full year before your case is resolved. Of course, this firm will make every effort to resolve your matter sooner. During the course of the litigation, individuals tend to forget events that occurred early on that may be relevant at trial or during settlement negotiations, as such, it is important that you keep some sort of diary to jot down important or relevant events as soon as possible after they occur.
In this state there must at some point be a hearing, at which it is possible that at least one witness besides you may have to testify about the allegations. As such, if there are any witnesses you know have relevant information, please ask that person to write out their anticipated testimony, while the incident(s) is fresh in his/her mind. The statement should be in the witnesses own words, without any assistance from you or anyone else. Please provide this office with all statements at your earliest convenience.
You will also be asked to provide this office with certain other relevant information including a confidential client questionnaire from which we gain necessary facts for preparing and filing legal documents, a complaint if you are suing or an answer and/or counterclaim if you have been sued, with the Court.
THE COMPLAINT
Marriage, divorce and related family dissolution matters are governed by state law. The legislature established the grounds for divorce by statute. The grounds for divorce that exist in New Jersey may differ from those that exist in other states. For example, many others states still require that there be alleged and proved an act of “fault” or that the parties have lived separate for a certain length of time. In New Jersey a Complaint for Divorce must allege one of the following grounds, and without one of these the Court is not authorized to grant a divorce:
Adultery
Desertion (12 or more months)
Extreme Cruelty
No Fault Separation (living separate and apart for 18 months in different homes)
Voluntarily Induced Addiction or Habitual Drug Addiction or Drunkenness
Institutionalization for Mental Illness (for a period of 24 or more consecutive months)
Imprisonment (for 18 or more consecutive months)
Deviant Sexual Conduct
Irreconcilable differences (for a period of 6 months)
As you will notice, New Jersey permits a no fault divorce based on either an eighteen (18) month separation or “irreconcilable differences”. Whatever ground for divorce a party relies on in his or her Complaint, that allegation will have to be proven. The exact type and amount of evidence necessary to prove the allegations contained in the Complaint are established by prior case law.
THE ANSWER
After the initial “Complaint” has been filed with the Court, then it must be served on your spouse. Your spouse may accept service at the clerk’s office to expedite the proceeding and avoid being served at work or home, or have an attorney accept service on his/her behalf. After the Complaint is served on the other party, by statute, the other party must file an Answer and/or Counterclaim within 35 days if he/she intends to do so. An Answer is just that, an answer to the allegations contained in the Complaint. The Counterclaim is basically the defendant’s “complaint”, and is generally filed simultaneously with the Answer. The defendant in a divorce litigation may also file an Appearance, when he/she is not contesting the allegations or grounds for divorce contained in the Complaint.
THE CASE INFORMATION STATEMENT
Generally, a Case Information Statement, also known as a “CIS”, must be filed and served on the other party in all contested family actions where there are any issues related to custody, support, alimony or equitable distribution. The CIS must be filed with the clerk of the Court within twenty (20) days after the Answer or Appearance has been filed. If either party fails to file a CIS in the time prescribed, the Court may dismiss that party’s pleadings.
The purpose of the CIS is to identify all assets and liabilities (whether or not subject to equitable distribution) of the parties. This financial statement aids the Court in making a determination with regard to what level of support may be necessary for a supported spouse. It also provides the parties with a financial statement from which to begin discussions with regard to equitable distribution issues.
Each CIS should include the parties’ tax returns, their last three (3) pay stubs, and retirement statements. The more comprehensively a parties’ CIS is, the easier it will be for the Court, attorneys and Mandatory Early Settlement Panel to help the parties settle their case.
WHAT’S NEXT
After the other party has filed a responsive pleading, the Court will generally schedule your matter for a Case Management Conference, during which the two attorneys will work with the judge assigned to your case to prepare a scheduling order. At that time, you will be given a date to appear before a Mandatory Early Settlement Panel (MESP). The MESP is comprised of two attorneys appointed by the court to arbitrate divorce cases on a volunteer basis. They hear facts of the case, listen to the attorneys for the litigants advocate their positions, and then, after deliberation, render their opinions to the litigants. Their opinion is non-binding, however if you and your spouse agree, you will be able to conclude your divorce at that time. If either you or your spouse disagree and are not able to settle your case, then the matter will be scheduled for a second MESP, a pre-trial conference or a trial date.
During a trial in your case, you will be afforded the opportunity to introduce witnesses and evidence in an effort to prove your position. The trial process can take several months due to the Court’s heavy calendar. After the trial, it can also take a number of weeks for the final decree to be signed by the Judge and to receive a final copy from the Court.
Resolving issues concerning your divorce can be costly and emotionally difficult. While only a judge can actually grant a divorce, order the division of your property and debts, and order support; many if not all of these issues can be resolved by consent and incorporated into a Final Judgment of Divorce. There exist alternative dispute resolution methods by which to resolve your case without the necessity of a public trial and expense associated with a full trial on all issues. Enclosed herewith is a short handout written by the Court outlining those alternatives, for your consideration.
Our law firm is here to expeditiously handle your case and answer your legal questions, and we hope to do so in a cost effective manner. If your desires or circumstances change, we of course cannot answer for any extra delay or expense that this may cause. We represent you and stand ready to advise you and to do what you instruct us to do, as long as it is within reason. We are always pleased to hear any good news of reconciliation, and in the event that you decide at any time to withdraw from any litigation which is before the Court or in the process of being prepared, please notify us at once so that we can prevent the legal process from going any further. Otherwise, we will prepare documents which you must read and sign for filing with the Court and then we will notify you of the trial date as soon as we know it – usually several weeks beforehand.
SEPARATION AGREEMENTS (PROPERTY SETTLEMENT)
Again, many of the matters incidental to a divorce can be more expeditiously disposed of if they are settled between the parties and not contested in Court. The matters that are agreed upon can be presented to the Court in a contract signed by husband and wife, called a Property Settlement and Support Agreement. It can deal with property division, support money, custody and visitation, insurance and many other subjects. If the Court accepts the agreement, it will adopt it as part of the final divorce decree and give the agreement the strength of a Court order, enforceable by contempt proceedings.
SPECIFICS
Property Matters: Property ownership and division of assets of a marriage are usually decided at the final hearing. If the respective parties to a divorce can agree on division of properties, both real and personal, then this agreement may be incorporated into a property settlement agreement to be presented to the Court for incorporation in the divorce judgment.
Support of Spouse/Children: While a case is pending, one spouse may be liable for the support of the other spouse and/or certain children. If the parties cannot agree upon an amount, then the Court will determine this amount. The support amount is based upon earnings of the respective spouses and needs of the support recipient; and setting spousal support is not an exact science. To help determine the amount of support, on the other hand, the Court utilizes child support guidelines. “The premise of these guidelines is that (1) child support is a continuous duty of both parents, (2) children are entitled to share in the current income of both parents, and (3) children should not be the economic victims of divorce or out-of-wedlock birth.” R.5:6A, Appendix IX-A1. The guidelines attempt to simulate the net income spent on a child in an intact family. Both parties’ incomes, or imputed incomes, are inputted into the guideline, along with any deductions to determine the total amount of child support. This office has a guideline program that it utilizes as a guide for what the Court will Order. No office has the same program as the Court’s, and as such the numbers can differ.
Child Custody: Custody and visitation schedules can also be included in a settlement agreement. If the parties cannot settle this issue at the outset, then the Court can schedule the parties to parenting time mediation. If mediation is unsuccessful, then it is often necessary to hire custody experts who will offer their opinion, by way of a Custody Evaluation or Report.
Retirement Benefits: Distributing retirement benefits, whether they are in pay status or not, can also be included in a settlement agreement. The way it can be distributed will depend on the type of benefit.
Woman’s Name: A married woman’s name can be changed by the Court in the divorce decree, and she should specifically ask for this relief at the time of the filing of the complaint if she desires it.
Miscellaneous: Everyone’s case is unique and will contain certain issues that may need to be resolved during the course of settlement. Rest assured that virtually every issue, within reason, can be included in a property settlement agreement, so long as the other party agrees.
INTERIM COERCIVE AND EMERGENCY RELIEF
Either spouse can obtain immediate financial support, immediate temporary custody, and other forms of relief during the pendency of the litigation, as soon as a divorce complaint is filed. For example, in an appropriate case, one spouse can be temporarily barred from certain premises or barred from dissipating marital assets. If you believe your present circumstances warrant any such special relief during the pendency of the litigation process, please mention it to your counsel immediately. Please be mindful however, if you believe you may be in danger, you should not wait to talk to your attorney, but should not hesitate to call 911 or the appropriate authorities. Only after you are out of danger, then you should advise your attorney of what transpired.
RESPONSIBILITIES OF ATTORNEY AND CLIENT
You, as the client of our law firm, are entitled to expect us to preserve your confidential communications and to prosecute your case to the best of our professional ability. The facts of your case will be the chief determinant and the outcome based on those facts presented will be in the sole discretion of the Court, subject to reconsideration or appeal if necessary. As such, you are responsible for keeping us informed as to all facts relative to your case. This shall include providing this office with copies of all requested documentation requested.
Frequently, legal aspects of a divorce proceeding closely involve other family members and third parties. However, please be very selective in choosing with whom you discuss your case. Family and friends, no matter how well intentioned, can tend to provide you with false information based on their personal experience. Please remember the outcome in a divorce is very fact specific and as such varies significantly with each case. You are entitled to answers, so please do not hesitate to ask questions. We will provide you with our recommendations, and if necessary show you the correlating Rule, Statute or Case that is the basis for our recommendation.
After you have deposited an amount of money with us as a retainer, you will be regarded as having established an attorney-client relationship with us. Once this relationship exists, you will not be asked to relay specific settlement proposals to an estranged spouse. This creates ethical difficulties for the lawyer under the Code of Professional Responsibility because it involves bypassing the other party’s lawyer. This is regarded as taking advantage of the other party. For the same reason, you cannot expect us to talk directly to your spouse.
As the client, your first major responsibility will be to work out the course of the continuing personal relationship with your spouse and as the case may be, your children. This does not mean that we will not be available to discuss the legal aspects of day-to-day problems, but our fees are based on time spent on a case (including telephone conversations) and there is no need for you to increase your legal fees unnecessarily.
Your second responsibility will be to inform us of any relevant changes in your domestic situation, especially reconciliation, but also including your residence, employment and health. Should you obtain any information from any source that might be relevant to your case, please communicate these developments to us as soon as possible.
When Court appearances are scheduled, it will be your responsibility to be present on time at the designated courtroom in the County Courthouse. If we determine that witnesses are required to be present on your behalf, you will coordinate everything with them and be certain they know when and where to be. If you are the complainant, then you may need corroborating witnesses.
You will have to produce records of your total income, whether from wages, fees or investments, and all of your assets, and furnish a complete list of debts and liabilities, including amounts required to meet all installment payments. I have attached a blank Case Information Statement for you to begin compiling this information. Please keep complete notes regarding all living expenses for you and for any children or other dependents living with you. If you are not able to state exact expenses, you should make your best reasonable estimate. Always attempt to be fair to yourself, as well as your spouse. A spouse will certainly get no more than what is asks for, but ought not to ask for either more or less than she reasonably needs. Keep in mind the fact that judges are very experienced in these matters and will quickly recognize exaggerated demands, and will not hesitate to reduce or cut your budget.
Please also be aware that by statute, this firm has the right to withdraw from representation if a client does not comply with this agreement.
STATEMENT OF CLIENT RIGHTS AND RESPONSIBILITIES IN CIVIL FAMILY
CLIENT RIGHTS
Clients have the right to have their attorneys diligently advocate their interests within the bounds of the law and legal ethics.
Clients have the right to have the fee arrangement fully and completely explained prior to entering into any agreement for services.
Clients have the right to have a written retainer agreement describing the financial terms of the relationship between the client and the attorney.
Clients have the right to refuse to enter into any unacceptable fee arrangement or modification of a fee arrangement.
Clients have the right to be provided information as to the attorney(s) who will be primarily responsible for their matter and all other legal staff who will be working on the matter as well as information as to the costs for those individuals.
Clients have the right to be provided bills on a regular basis itemized as to the charges and time spent on each activity.
Clients have the right to be informed of and be present at any court proceeding involving their case unless otherwise directed by the court.
Clients have the right to be provided copies of all documents presented to the court by any party in their matter unless otherwise ordered by the court.
Clients have the right to be afforded reasonable access to their attorneys.
Clients have the right to make the final decision as to whether, when and how to settle their cases and as to economic and other positions to be taken with respect to issues in the case.
CLIENT RESPONSIBILITIES
Clients shall provide full and accurate information to their attorneys regarding their matter.
Clients shall be available to participate in a timely fashion regarding their matter and to respond reasonably to requests from their counsel.
Clients shall advise their attorneys promptly of any change in their lives that might reasonably be expected to affect the handling of their matter.
Clients shall pay for the legal services rendered on their behalf within the time period set forth in the retainer agreement.
Clients shall be required to review diligently all bills submitted by their attorneys and within a reasonable time to raise any objections regarding billing.
Clients shall not take any position in their matter for any improper purpose such as to delay the proceeding or intentionally to increase the cost to other litigants.
Clients shall not seek to use their attorneys for any improper means.
Clients must recognize and be responsible for the costs associated with any action initiated or requested by the client.
Clients shall provide sufficient time for their attorneys to explain to them the financial costs and other ramifications of a potential action in their matter and reasonably to consider the advice of their attorneys.
NOTE: Adopted January 21, 1999 to be effective April 5, 1999
CONTACTING THE LAW FIRM
The office is generally open Monday from 10:00 a.m. to 5:00 p.m., Tuesday – Thursday from 9:00 a.m. to 5:00 p.m., and Friday from 9:00 a.m. to 3:00 p.m. Our telephone number is 732-749-3500. This office makes it a general policy to return all client telephone calls within twenty-four (24) hours, except during the weekends and holidays. This office is also available for early morning or evening appointments when arranged.
When calling the office to leave information or make inquiries, you will find all of the secretaries and staff cooperative. Please also understand however, staff is not permitted to give out any legal advise, and while they are trained to field your inquires, often you will have to wait for a return call from an attorney. Again, the attorney will make every reasonable effort to return your call within 24 hours.
Our experience has been that most matters truly necessitating emergency evening discussions are matters involving concern for physical well-being, and if there is a genuine emergency, the best procedure is to call the police directly. As lawyers, we represent you in the courts but we can do little to help you at your home. We are not the police and have no more authority than anyone else to intervene.
