The Different Types of Divorce Proceedings
Understanding Your Options in Divorce
If you are considering filing for divorce, you may be confused by some of the terminology, specifically with respect to the different divorce proceedings. Here’s an overview:
No-Fault vs. At-Fault Divorce
New Jersey offers the option of no-fault divorce. With no-fault divorce, you don’t have to state a specific reason for dissolving your marriage: you must only acknowledge “irreconcilable differences” have existed for at least six months before you file your complaint and there is no reasonable prospect of reconciliation. You do not have to live separate and apart in order to file.
You may, however, allege fault in your divorce proceedings such as “extreme cruelty” or “abandonment”, among others. It is uncommon these days to file for fault grounds but there are some situations where we would recommend you do so. It is not typical to file for fault grounds although every case is different and discussing the pros and cons with your attorney is important.
Contested vs. Uncontested Divorce
Most people believe an “uncontested divorce” is when both parties want to get divorced. That is simply not the case. With an uncontested divorce, you and your ex reach an agreement on all relevant issues, such as custody and visitation, support and the distribution of marital debts and assets. If you don’t come to an agreement on all of the issues, you have a contested divorce even if you both want to get divorced!
A true uncontested means that you agree to divorce AND you have come to agreement on all of the terms of your divorce. If you don’t resolve all the terms by the time your final hearing date is set, a judge will make the decisions for you. It is almost always better to make those decisions yourself – even though it will mean compromise. A good attorney will guide you through the process and assist you in deciding if and when to settle.
Mediated and Collaborative Divorce Proceedings
Mediation and the collaborative process are both forms of alternative dispute resolution. With mediation, you and your ex take your case to a neutral third party, who works with both of you to identify and implement mutually beneficial solutions to custody, visitation, support and property matters. The mediator does not render a judgment, but merely acts as a facilitator.
May people have the misconception that you mediate OR you litigate. Again, that is simply not the case. The best way to go to mediation is with the assistance of counsel – you can choose to have your lawyer come with you to mediation or go alone. But either way, speaking with a lawyer BEFORE you go to mediation will help you. Your lawyer can take a look at your situation and advise you what you are entitled to under the law, what support and equitable distribution would likely look like if a judge made the calls and can also give you ranges of possibilities so that you don’t give up rights you didn’t even know you have. You should also have a lawyer take a look at any proposed agreement you come up with the assistance of the mediator BEFORE you sign it.
If you decide not to mediate before filing your divorce, once the litigation process begins, the court will assist you with mediation. In New Jersey, many of the courts provide free parenting time mediation. We also have Early Settlement Panels (ESP) to help you mediate – also free of charge. Finally, if the ESP doesn’t help to resolve your case, the court will refer you out to economic mediation, that you attend with your attorneys, and you are provided the first two hours free.
Collaborative Divorce is fairly new in New Jersey. You and your attorney work with your soon-to-be-ex and his/her attorney and often have the assistance of accountants, psychologists, social workers, etc. seeking to negotiate solutions that are acceptable to everyone. You may rely on third party experts, such as child psychologists and financial planners, to find workable solutions for custody, visitation and property settlements. One caveat—if you cannot resolve all matters without the intervention of the court, you must typically discontinue your professional relationship with your attorney and hire new counsel to represent you in any court proceedings.
Contact The Law Offices of Kelly Berton Rocco
Located directly across the street from the Bergen County Courthouse in Hackensack, New Jersey, the Law Offices of Kelly Berton Rocco are conveniently situated to serve residents of Bergen, Passaic, Morris, Hudson and Essex counties. We offer a free half hour telephone consultation for new clients. For more information or to set up your initial consult, call us at 201-343-0078 or email us today.