New Jersey Uncontested Divorce
This information is an overview of the uncontested New Jersey divorce filing process and a summary of the divorce papers that are typically filed with the family law or domestic relations clerk. This overview is not intended to be an exact step-by-step guide for those "do it yourself divorce" filers, due to the fact that many cases are unique and the overview presented here is often not the only method of obtaining an uncontested divorce in New Jersey.
To file for divorce in New Jersey, 1) a person must be a resident of the state for at least one year, or 2) when the ground is adultery that took place in New Jersey, one of the spouses must be a resident (there is no time limit).
The spouse filing the action is called the Plaintiff; the spouse responding is called the Defendant. Divorce actions are filed in the Chancery Division, Family Part, of the Superior Court, which is the county court.
In New Jersey, No-Fault grounds for divorce are living separate and apart for 18 months with "no reasonable prospect of reconciliation." Fault grounds are 1) adultery, 2) willful and continued desertion for one year, 3) extreme cruelty, 4) deviant sexual conduct, 5) addiction, 6) institutionalization, and 7) imprisonment for 18 or more consecutive months.
Separation means living separate and apart and having separate lives. Usually, this means living in separate places, not merely in different rooms in the same house. As a rule, the 18-month period begins when the couple agree it begins, but one spouse may contest that date and thus delay the divorce.
Unlike some states, New Jersey does not have a summary divorce. However, the simplest divorce action has five steps, which the Plaintiff does the following:
> Files a Verified Complaint for Divorce, which identifies the parties in the action and stipulates the action: divorce.
To file on an uncontested basis, four threshold requirements must be met. They are as follows:
1. Unless alimony is sought, either or both spouses must have resided in New Jersey for at least the past year.
2. Both spouses agree on custody and child support.
3. Both agree on property division and distribution.
If the parties meet these requirements and if they are not seeking divorce on grounds of separation, a divorce may be completed in a short time.
Going this route requires that these forms be completed:
> A Civil Case Information Statement, which describes the type of case before the court.
At some point, the couples must agree on everything at issue, including the division of the marital estate, child custody and visitation, and this is incorporated into the Property Settlement Agreement (PSA). This may be accomplished by the parties themselves, their counsel and/or the ESPs. At the final hearing, the PSA is incorporated by reference into the Final Judgment of Divorce, which is also prepared by the Plaintiff.
In this routine, all necessary forms are served upon the spouse, who may or may not file an Appearance and his or her own Case Information Statement. If he or she does not file an Appearance or his or her own Case Information Statement, the Plaintiff may move for and receive a default judgment 35 days after the Defendant is served.
A contested divorce requires that the Plaintiff file all the forms required in an uncontested action. The trajectory of a contested divorce, however, from filing to final judgment, is impossible to predict because each side jockeys for its own advantage. Normally, the Defendant files an Answer with Counterclaims. Normally, the Defendant has 35 days to answer the Complaint by filing a Counterclaim. The Plaintiff then has 20 days to file a response to the Counterclaim. The divorce may begin contested but end uncontested because even as the parties are maneuvering for battle they sometimes continue to negotiate.
Both spouses must file a Matrimonial Case Information Statement (CIS) within 20 days after the Defendant has answered the complaint. The CIS is each party’s statement of contested issues, assets and liabilities, property owned by the spouses, spousal income and important financial issues. It may be updated and amended up to 20 days before the final hearing on the divorce.
After filing the Complaint, the Plaintiff may seek motions to settle, on a temporary basis, such issues as temporary spousal and child support and custody.
In New Jersey, after the Verified Complaint is filed, the action is assigned to one of four judicial management tracks, which determines how quickly the action moves through the court. They are as follows:
1. Priority Track, which includes those cases involving contested custody and parenting time.
2. Complex Track, which are those requiring substantial court and litigant resources because of the number of parties, claims and defenses raised, the complexity of issues raised and overall difficulty of the case.
3. Expedited Track, which are those cases that can be tried with minimal pre-trial proceedings.
4. Standard Track, which are those actions not assigned to tracks 1, 2 or 3.
All counties in New Jersey use Early Settlement Panels (ESPs), which upon referral of the court, sets forth positions as to material issues such as property division, child support and custody. Participation is not voluntary. Spouses who decline to participate may be penalized, either through the award of legal fees to the other spouse, or the dismissal of his or her pleadings.
When a spouse cannot or will not be found, the Plaintiff must make what is called "diligent inquiries" to locate him or her. If these fail, the Plaintiff may ask the court for permission to use an alternative method of service. This is done in one of two ways: 1) serving the Defendant by what is called "substituted service" on a special agent, which means serving another person who is able to give the Summons and Complaint to the Defendant; or 2) Service by Publication, which mean publishing the divorce complaint in a newspaper.
In New Jersey, "diligent inquiries" are very demanding. The Plaintiff must use forms to write a Letter of Inquiry to Defendant’s Friends, Family, or Employers, a Letter of Inquiry to MVC, Letters of Inquiry to Military, a Letter of Inquiry to Postmaster. The Letter of Inquiry to Defendant’s Friends, Family, or Employers must be sent by both regular mail and certified mail, return receipt requested. Each letter must include a self-addressed stamped envelope. All possible leads, both in New Jersey and outside of the state, must be explored. If service is successful, the Plaintiff must wait at least 35 days for response from the Defendant.
If this fails, steps 1 or 2 may be taken. Step 1 requires a Request for Order Permitting Service on a Special Agent and Supporting Certification. The Supporting Certification is a copy of each letter sent during the diligent inquiries. The Order Permitting Substituted Service on a Special Agent identifies the party, particularly why that person may be able to give the papers to the Defendant. This must be accompanied by a Filing Letter to Court -- Request for Substituted Service.
For service by a special agent, the following forms must be prepared: a cover letter to the sheriff, two copies of the Summons and attached Proof of Service; two copies of the Complaint for Divorce, attached Certification, Certification of Insurance and Certification of Complementary Dispute Resolution. New Jersey courts usually specify how the special agent is be served and require that the special agent be served through the sheriff’s office.
If Step 1 is not possible, Step 2 may be taken. Step 2 requires that the Plaintiff file a Request for Order Permitting Service by Publication, an Order Permitting Service by Publication, and the Supporting Certification of the copies of letters of inquiry. The court then designates a newspaper in which the Plaintiff must publish the notice.
For service by publication, the following forms must be prepared: a Cover Letter to Newspaper requesting Publication and a Notice of Order of Publication. After the publication, the Plaintiff must file a Filing Letter to court Re: Certification of Publication, which is a form.
Regardless of the method of service, the Defendant must be served within four months of filing the Complaint. If the Defendant is not served within four months, the court may dismiss the action.
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