Five Steps to File for Divorce

Spouses seeking a divorce in New Jersey must follow five general steps. This post will explore these steps in greater detail, and answer many other common questions about divorce filings in New Jersey.

1. Gather Important Records
2. Decide on a Reason for Divorce
3. Prepare a Complaint for Divorce
4. File Divorce Forms
5. Serve Your Spouse Divorce Papers

Considering divorce? Contact the Law Offices of Katherine K. Wagner for a consultation.

Can You File Alone?

Yes. Anyone can walk into a county courthouse with the proper forms, pay filing fees, and receive a docket number. That does not mean it is a good idea.

Should You File Alone?

No. The courts will not relax procedural rules for a divorcing spouse representing themselves in proceedings. Divorce law is a difficult specialty, and each case requires a unique approach.

If a person appears without a lawyer, they will be unlikely to receive advantageous terms from a divorce. Child support, alimony, custody, marital property division, and an array of other issue can arise during divorce, and a lawyer must be capable of smoothly transitioning from matters of family law to finance law to, in cases of abuse, criminal law, often on short notice, throughout the life of the case.

Many lawyers do not specialize in divorce matters, and a lay person attempting divorce without legal counsel could be at a big disadvantage if the divorce becomes contested.

Steps to File Divorce–Explained

1.Gather Important Records

Financial Documents

Divorce often requires splitting property owned jointly or in tenancy by the entirety, family heirlooms, vehicles, accounts, and retirement savings. This is a complicated process in even the most amicable divorce cases, all the more so when a spouse is contesting the divorce.

Any documents related to family finances should be retained and collected for reference during a divorce. Auto loans, pension plans, education savings, and insurance policies can become battlegrounds in a divorce. Having financial documentation on hand will better empower your attorney to represent your interests.

Legal Documents

Any legal documents relating to a marriage should also be kept close at hand when filing for divorce. Restraining orders, orders of protection, custody documents, and any other legal documents relating to the marriage and your grounds for divorce could, and likely will, be useful for your attorney.

2. Decide on a Path Towards Divorce

Parting ways with a spouse who has grown estranged or escaping an abusive husband require very different approaches to the divorce process.

Your lawyer can help you choose the best path for your circumstances.

No-Fault Divorce

New Jersey law allows spouses to divorce without citing specific faults in their partner.

When partners have experienced a breakdown in their marriage lasting longer than six months and it appears there is no chance for reconciliation, one of the partners can file for divorce under the grounds of irreconcilable differences. If a couple has lived separately for more than 18 months, that can also be used as grounds for a no-fault divorce.

Whatever reason is cited in the complaint for divorce, one of the spouses must have been a New Jersey resident for twelve months prior to the filing of a Divorce Complaint (except in cases of adultery).

No fault divorces work best when mediation and a separation agreement are attempted, and possibly finalized, before the actual filing takes place.

Fault-Based Divorce

The New Jersey Revised Statutes allow spouses to specifically blame certain aspects of a spouse’s behavior for ending the marriage. Among others, adultery, extreme cruelty, abandonment (lasting more than 12-months) and incarceration are all grounds by which a spouse can request a divorce.

To learn more about grounds for divorce, also referred to as the Cause of Action, you can read my blog post: Grounds for Divorce in NJ

3. Prepare a Complaint for Divorce

This is the first step in the divorce process. Your lawyer will complete the proper forms and gather supporting documents needed to establish grounds for divorce. Besides personal information about you and your spouse, the complaint will name the grounds for divorce and stipulate what relief you are requesting.

Relief requested can include alimony, child support, child custody, and parenting-time arrangements and the equitable division of marital property,

Retaining an attorney experienced in divorce will allow you to present strategies, arguments, and demands that are reasonable for your situation.

For Victims of Domestic Violence:

While you will need to put an address and contact information in the divorce complaint, there are programs in place to prevent your spouse from discovering where you live. The State of New Jersey has created an Address Confidentiality Program that can be used as your address of record for the protection of victims of domestic violence.

4. File Your Divorce Complaint

Before you can file your divorce complaint, it must be determined which county to file in. This is determined by where you were living when the cause of action arose.

• If you lived in New Jersey at the time the cause of action arose and you still live in New Jersey now, you should file your divorce in the county where you lived when the cause of action arose.
• If you lived outside New Jersey when the cause of action arose, but your spouse lived in New Jersey, you must file for a divorce in the county where he or she lived.
• If you both lived outside of New Jersey when the cause of action arose but live in NJ now, you should file in the county where you presently reside.
• If you both lived outside of New Jersey when the cause of action arose but your spouse lives in NJ now, you should file in the county where he or she currently resides.

Filing for divorce ordinarily carries a $300 fee, and an additional $25 fee for parents with minor children. A judge can waive this fee if you demonstrate extreme financial hardship.

When you file your Complaint, please ensure that you enclose a self-addressed stamped envelope as you will receive in the mail a copy of your complaint stamped FILED, with an associated docket number. If not envelope is included, you will have to return to the courthouse to pick up your filed Complaint for Divorce.

5. Serve Your Spouse Divorce Papers

Properly serving your spouse (now designated as the defendant), is the final step in filing a divorce. A copy of the divorce complaint with an attached summons and proof of service must be properly presented to your spouse.

This can be done in several ways. County Sheriffs will charge a fee to serve papers to the defendant if their address is known. However, service via the Sheriff’s office is not always successful and can be time-consuming.  If you have a lawyer, he or she will, most likely, suggest that a private process server is used. Some process servers can serve a Complaint within a day or two for approximately $100.

If the defendant is uncooperative or their address is unknown but their lawyer is known, the lawyer can accept service of the Complaint on behalf of his or her client.

In cases where the defendant’s whereabouts are completely unknown, your lawyer will have to follow additional steps to file a motion for alternate service of process. Courts will sometimes allow service via email or, as a last resort, by publishing notice of the action in a local newspaper in the general area where the Defendant last resided.

What Happens Next?

What happens after a divorce is filed depends upon the defendant. In New Jersey, the defendant has 35 days to respond, starting from the day her or she was served. If the defendant spouse agrees to the relief requested in the divorce, the court will enter a judgment of divorce on those terms. If a Defendant ignores the filing, you will be required to file and serve a Proposed Notice of Equitable Distribution.  The court will then set the matter down for a default hearing and, it is very likely that the court will award what has been requested by the plaintiff. This is known as a default judgment.

If the defendant spouse objects to the terms of the divorce filing, they have to respond within the 35-day time frame or any agreed upon extension that the attorneys agree upon. They may object to specific terms of the divorce by filing an answer or counterclaim. If the divorce is contested, an initial Case Management Conference will be set to determine the time frames for exchanging Case Information Statements, obtaining appraisals of property, pensions and other valuables and also setting times for the exchange of discovery, which generally take the form of Interrogatories and Notices to Produce Documents. At that time your lawyer may also begin negotiating with your spouse’s lawyer.

If you need representation in a divorce or family law matter, contact the Law Offices of Katherine K. Wagner for a consultation.