Note: This guide will explain the divorce process, but the forms referred to here are available only in the print edition. For ordering information, visit the LSNJ.org publications page, e-mail publications@lsnj.org, or contact Legal Services of New Jersey at 732-572-9100.
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Chapter 5:
Going to Court When the Defendant Is Not in Default
This chapter will explain the different steps of the court process where the defendant has answered the complaint and you are going to trial, including:
- The case management conference to decide how and when the case will proceed
- Discovery—exchanging documents and obtaining financial and other information related to the case, and obtaining professional assessments of assets such as pensions, businesses, and real estate.
- The Early Settlement Program to assist the parties in coming to an agreement about how to divide property and decide on child support and alimony before going to trial.
- Mediation for parties who disagree about custody of the children.
- The divorce hearing.
- The final judgment of divorce.
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Defendant Files an Answer
In Chapter 4: Getting a Default Judgment, we described the steps you need to take when the defendant has not filed a written answer and is in default. In this chapter, we describe how a divorce will proceed when the defendant has filed an answer. If you and your spouse can reach a settlement or agreement about contested issues, see the instructions and read about uncontested divorces. If you do not agree on the issues, you will proceed through the steps below. We explain the process for both contested and uncontested divorces.
If you have not organized all of the divorce papers that you have prepared so far, please do that now, following the suggestions at Papers Needed for Court—Your Case File. You may not need all of the documents suggested, but organizing will save you time if you are asked to produce a document or prove that you took some action.
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Case Management Conference
If the defendant answers the complaint, you are ready to move ahead. The court is supposed to schedule a case management conference within 30 days after the court receives the last pleading. (The last pleading is either the answer to the complaint or, if there is a counterclaim along with the answer, your answer to the defendant’s counterclaim.) At the case management conference, the judge and the attorneys for the parties, or the parties themselves if they do not have attorneys, meet in court and discuss the following subjects:
- The contested issues in the case (the issues about which the parties disagree).
- What forms of pre-trial discovery the parties may use and time frames for discovery. (Discovery is the process by which each party finds out information about the other party’s situation as related to the case. See Discovery Before Trial.)
- A trial date or a date for a second case management conference to set a trial date.
- A date for the early settlement program, if the judge thinks the case is appropriate for that program.
- Other miscellaneous matters related to the case.
At the case management conference, the parties do not testify and the judge does not review evidence. The purpose of the conference is for the parties to introduce the judge to the case, identify the areas of disagreement, and estimate how long each side will take to present his or her case. The conference can be conducted by telephone.
If either party has an attorney, the attorney must participate. The parties do not have to be present unless the court specifically orders them to be present, but they must be available to answer questions by telephone if necessary. If you are representing yourself, you must be present.
At the end of the conference, the judge will sign a case management order that sets a discovery schedule, a date for a second case management conference, a date to appear before an early settlement panel, or a trial date.
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Discovery Before Trial
The discovery process permits each party to gather relevant information about the other party. A discovery schedule explains how and when the parties will exchange necessary documents and information concerning the case. For example, during discovery in a divorce case, parties may send each other requests for the production of documents such as tax returns or other financial documents. Discovery also gives the parties the opportunity to obtain professional evaluations of the value of assets such as pensions, businesses, and real estate. In some cases, it may be difficult to get this information without the assistance of an attorney. You should seek the assistance of an attorney if you need to have assets evaluated. If you do not know which documents to ask for, or are unsure what investments your spouse has, it is a good idea to first send interrogatories that ask questions about those issues. Interrogatories are written questions that ask for written answers. Interrogatories can also ask for documents. Once you receive the answers to the interrogatories, you may have a better idea of which documents you need to see.
If your spouse refuses to provide you with relevant information, you can ask the court for assistance by filing a motion to compel your spouse to comply with your request for discovery.
There are a number of other ways in which the parties can collect information. However, discovery tools are often difficult to use without the assistance of an attorney. If you feel you will need substantial information about your spouse, or if you are having trouble getting necessary information from your spouse, you should speak with an attorney.
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Parents’ Education Program
If the parties have minor children, they are required to attend a one-time seminar on parenting, which explains how the court process works and discusses parents’ responsibilities for their children and children’s needs during and after the divorce. When you filed your complaint, you were required to pay an additional $25 fee for this program. If you do not attend the program, the judge may consider that when making decisions about custody and parenting time/visitation. Parties with restraining orders are exempt from the program, and the judge can excuse you from the program if you demonstrate a good reason for not participating.
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Mediation of Custody and Parenting Time/Visitation
When parties cannot agree about custody or parenting time/visitation, the court may send the parties to a court mediator to try to resolve these issues. The court can send parties to a mediator any time after the complaint has been filed. Parties with temporary or permanent domestic violence restraining orders are exempt from the requirement of participating in mediation. The Family Division of the Superior Court offers at least two types of mediation in every county, Matrimonial Early Settlement Panels (MESPs) and Custody/ Visitation Mediation. Some counties have additional services available for other family-related disputes. For more information about these services, contact the Complementary Dispute Resolution (CDR) coordinator for your county.
Parties who are ordered to participate in mediation are required to attend a mediation orientation program. They may then be required to attend an initial mediation session. These sessions are closed to the public. The mediator may terminate the session at any time if he or she thinks that it is appropriate according to certain guidelines and rules. In addition, the mediator or either party may petition the court to remove the case from mediation at any time if they can show good cause to do this. Unless the parties otherwise consent, no disclosure made by a party during a mediation session may be used as evidence against that party in a hearing or trial.
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Matrimonial Early Settlement Programs (MESPs)
After the parties have submitted their pleadings (complaint, answer, counterclaim, and answer to counterclaim) and their case information statements, a judge will review the case and decide whether the parties should try to settle the case. If the judge decides that this might be helpful, he or she will send the parties to a matrimonial early settlement program (MESP). The parties must appear and try to work out their differences. Five days or more prior to the hearing, the parties must submit a written description of the issues that remain unsettled in their case. If either party fails to appear, the court may require the party who failed to appear to pay the counsel fees of the other party, or the court may dismiss that party’s pleadings.
The MESP normally consists of volunteer attorneys who review the case, listen to the parties’ requests, suggest a solution to the contested issues, and recommend a settlement agreement. If the parties cannot agree on a settlement, they may be referred to post-MESP mediation, or they will have a trial. Parties can settle some issues and still have a trial on the issues that they cannot resolve. The statements made by the parties in the mediation cannot be used against either of them in a later trial. If your spouse attempts to use something that you said in mediation against you when you are in front of the judge at a trial, you should object to this and let the judge know that this is the reason you are objecting.
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Post-MESP Mediation and Post-MESP Complementary Dispute Resolution
If the parties are unable to settle their case in MESP, the court may issue an order for additional mediation or another form of post-MESP Complementary Dispute Resolution (CDR). [For a description of the most common types of CDR, see Explanation of Dispute Resolution Alternatives (Form 2A).] The court order will state that the parties can select a mediator from a statewide-approved list of mediators or select another individual to conduct this post-MESP CDR. If you and your spouse choose your own mediator, you must do so within seven days of the receipt of the order.
You must then participate in the post-MESP program for at least two hours. You may participate voluntarily for longer, but you are not required to do this. In the first hour, the mediator will prepare the case. In the second hour, you and your spouse will participate in actually mediating the contested issues in your case.
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Custody and Parenting Time/Visitation Plan
If you and your spouse disagree about custody and parenting time/visitation issues, you will each have to file a Custody and Parenting Time/Visitation Plan (Form 22) with the court within 75 days after the defendant answers the complaint. Use the Filing Letter to Court—Custody and Parenting Time/Visitation Plan (Form 22A). If the defendant files a counterclaim, the plans must be filed within 75 days after you file your answer. In your plan, you must give the court certain information, including:
- What type of custody you are seeking and why.
- The schedule you propose for parenting time/visitation.
- Whether or not you seek to share decision-making about the child(ren).
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Requests for Relief Before the Divorce is Final—Pendente Lite Motions
Because the divorce process can take several months or longer, the parties often need help from the court before the final judgment of divorce has been entered. If you need to get a temporary order related to custody of the children or financial support while the case is going on, you must file a motion. A motion for relief before the judge decides your divorce case is called a motion for pendente lite relief. This manual does not explain how to obtain this relief. You should talk to a lawyer if you need to file such a motion.
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Trial or Settlement
Notice of Trial Date
After you have gone to the case management conference, participated in mediation, completed discovery, and have, in some cases, appeared before a Matrimonial Early Settlement Panel, you should receive a notice from the court about your trial date. If you do not receive a notice within 10 days of completing pre-trial discovery, call the court. You will get this notice even if you have been able to work out a settlement agreement. By the time you get your trial notice, you will have a good idea about what issues you and your spouse can agree upon and what issues you simply cannot work out.
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Uncontested Divorce—Getting a Divorce When There Are No Contested Issues
How to Prepare for a Hearing
If you have settled all of the issues by the time you attend your hearing, the judge will hold a brief hearing and ask you a few basic questions. If the divorce is uncontested (meaning that both parties agree about everything or that neither party has filed any objections to the claims made by the other party), the court often will ask you a few questions to establish the truth of the statements in your complaint. The court will probably not ask for testimony or evidence to be presented. You must still appear on the trial date even if you feel there is nothing that needs to be discussed.
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Documents to Take to Your Hearing
You will need to file an updated Family Part Case Information Statement (CIS) (Form 3A) with supporting financial documents if your financial situation has changed substantially since you filed your complaint, if you are the plaintiff, or since you filed your answer and counterclaim, if you are the defendant.
When you go to your hearing, take the following documents with you:
- All papers that have been filed with the court, including:
- The Complaint for Divorce (Form 1A, 1B, 1C, or 1D) and Attached Certification.
- The Certification of Insurance (Form 2).
- The Certification of Notification of Complementary Dispute Resolution (Form 2B).
- The Answer and Counterclaim for Divorce (Form 14A, 14B, 14C, or 14D), if there is one.
- The Family Part Case Information Statement (CIS) (Form 3A) for each party, if these documents were required and were filed.
- Your marriage certificate, if you have one.
- Your children’s birth certificates and Social Security numbers, if they have them.
- Recent pay stubs, if you work.
- Any settlement agreement.
- Your proposed Consent Order—Final Judgment of Divorce (Form 24), explained below.
- Any property deeds that need to be signed. (If the defendant comes to court, the judge can order him or her to sign them.)
The judge should have copies of all of the documents in the court file, except for the proposed final consent judgment of divorce, which you will prepare before you appear in court for your hearing. However, if the judge is missing one of documents listed above and you come prepared with your own forms, you can show the court your copy of the document, which may help the judge grant your divorce more quickly.
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Preparing the Proposed Consent Order—Final Judgment of Divorce
The court order that legally ends your marriage is called a final judgment of divorce. That court order describes the resolution of the issues that you have raised in your divorce complaint, such as custody, child support, alimony, equitable distribution of property and debt, and name change. When both parties agree to be bound by an agreement, the final judgment will be called a consent judgment or consent order. You will need to prepare a proposed final consent judgment for your hearing. In it, you will write down the agreement you and your spouse have reached on every issue on which you agree. Do not sign the consent judgment before the hearing. You and your spouse and the judge will all sign it after the judge reviews it at the hearing and asks you questions about it. Your answers to those questions must be given in court on the record.
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What to Expect at the Hearing
A few days before your hearing, call to confirm the time and date of the hearing and the name of the judge assigned to your case. On the day of the hearing, arrive about 10-15 minutes early so that you will have to time to collect your thoughts before you have to go before the judge. When you arrive at the courthouse, look for a court officer or other staff person and give him or her the title and docket number of your case and your name.
If the defendant is not present for the hearing, the judge will make sure the defendant was served properly with the summons and complaint. If a sheriff’s officer served the summons and complaint, the court should already have a copy of the proof of service. If no proof of service has been filed, you may have to show the court proof that the defendant was served, such as a return receipt.
The court may ask you a few questions to determine that everything in the complaint is true to the best of your knowledge. The court normally assumes that you are telling the truth in your pleadings, unless your spouse contests something that you have said. It is important to listen carefully to the judge’s questions and answer them truthfully. If you do not understand a question, ask the judge or the attorney or other party to repeat the question.
If you have requested that the court grant a name change, the judge will ask you why you are changing your name. The judge must make sure that you are not changing your name to get out of any debts owed to creditors or to avoid any criminal charges that may have been filed against you. Answer these questions in a clear and straightforward manner. If you do not understand the judge’s question, ask the judge to repeat or explain the question to you.
If there is a separate settlement agreement, it will be attached to the actual judgment of divorce. The judge will also want to make certain that both of you have read the settlement agreement and understand all of it before you and the defendant sign the agreement. If you are agreeing to the divorce by way of a consent judgment, the judge will ask each party or each party’s attorney to read the agreement carefully before you and the defendant sign it. If you do not understand something in the agreement, or if you disagree with something, you do not have to sign the agreement.
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Contested Divorce—Getting a Divorce When There Are Contested Issues
How to Prepare for Trial
The issues that you were not able to work out or settle in your divorce case will have to be decided by a judge at a hearing or a trial. If you do not have a lawyer, you may want to consider trying mediation before going to trial if you have not done so. Or you may want to reconsider hiring an attorney if that is possible. See How Can I Get a Lawyer or Mediator to Help Me?.
At the trial, each party can testify or explain his or her view of the situation. Both parties may present evidence that is relevant to the issues in the case, such as documents, pictures, or videotapes, and bring other witnesses to testify. If there are many disputed issues, the trial will be long and could take several days. If there are only a few issues that need to be decided, the trial may only take a few hours.
Often it is not the grounds for divorce that are disputed by the husband or wife, but the other issues, such as who will get custody, how much alimony one spouse will pay to the other, or who gets what part of the property.
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Witnesses at the Trial
Prepare for your trial by considering whether or not you need to bring any witnesses to testify on your behalf. For instance, if custody is a disputed issue, you may want to have another person, such as a relative, friend, teacher, or day care provider, come and testify about how you have been the primary caretaker of your child and are more actively involved in your child’s life than your spouse, if that is the case.
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How to Get Witnesses to Come to Court to Testify—Subpoenas
You do not have to serve a subpoena on a witness who is willing to come to court voluntarily. However, if your witness is not cooperative or reliable, then you should serve that witness with a subpoena, an order from the clerk of the court demanding that the witness attend the trial and give testimony. A subpoena can also order a witness to bring documents to the trial. A witness must receive a subpoena five days or more before the trial date.
You prepare the subpoena, and the law gives you the authority to sign the name of the clerk of the court. See Subpoena Duces Tecum ad Testificandum (Form 23). You must also pay the witness a fee for traveling to and from the hearing. As of the time of publication of this manual, this fee is $2 per day for witnesses who live in the same county as that of the court. For witnesses who must travel from another county, the fee is an additional $2 per day for every 30 miles of travel.
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Documents to Take to Your Trial
Your list should begin with the same documents listed above for an uncontested hearing. If your financial situation has changed substantially, you will need to update your Family Part Case Information Statement (CIS) (Form 3A) and supporting documents.
You may also need other documents or evidence, depending upon what issues are disputed.
- Example 1: If you and your spouse are disputing who should have custody, you will need to present witnesses and other evidence, such as documents, to support your claim that it is in your child’s best interest to live with you and not your spouse. For example, if your spouse has been convicted of a crime or has a domestic violence restraining order against him or her, this is relevant to whether or not he or she should have custody. You should take to court a copy of the judgment of conviction or the domestic violence restraining order. You can also take witnesses, such as friends, relatives, clergy, health care providers, child care providers, etc., to testify about your parenting skills.
- Example 2: If your spouse is refusing to help pay for joint credit card bills, you should take copies of those bills to show that the credit cards were used to buy household items.
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Preparing the Final Judgment of Divorce
Even if there are issues in dispute, it is a good idea to prepare a proposed final judgment of divorce to take to court. Prepare the judgment as if you have won the case and received all of the relief that you requested in your complaint. For instance, if you are asking for custody of the minor children, you should prepare the judgment as if the court has decided to give physical custody of the children to you. If you are asking for a specific amount of child support or alimony, you can put this specific amount in the proposed final judgment of divorce. However, if you have made a general request for those types of relief and are waiting for the judge to decide on the specific amount, then you should leave that part blank. See Final Judgment of Divorce (Form 25).
If there are many issues that are being presented at trial and if the trial is a long one, the judge may “reserve” his or her decision. This means that, instead of giving a decision at the end of the trial, the judge will call you back to court at a later date and deliver the decision in open court, or send the decision to you after he or she has completed it. This often happens in cases where there are complicated issues concerning division of property or debts.
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What to Expect at Your Divorce Trial
At the trial, you and your spouse will present witnesses and evidence that support your requests for relief in the Complaint for Divorce (Form 1A, 1B, 1C, or 1D). The plaintiff presents his or her side of the story first. After each of the plaintiff’s witnesses testifies, the defendant or the defendant’s attorney, if he or she has one, can cross-examine those witnesses. This means asking them questions about what they said. Then the defendant presents his or her case, and the plaintiff or the plaintiff’s attorney can cross-examine those witnesses. The judge can also ask questions of any of the witnesses. The most important instruction for a witness in a courtroom is to remember to listen to the question asked and to give only the answer to that question and no more.
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Final Judgment of Divorce
The Final Judgment of Divorce (Form 25) is the court order that ends your marriage and grants your divorce. It will also include any other relief the court orders. The judge can use the order form that you or the defendant submitted and write on it any changes to the proposed order, or the judge can prepare a new order. The judge can also request that plaintiff or defendant or plaintiff’s or defendant’s attorney prepare a new order, but judges are usually more likely to ask an attorney to prepare a proposed order. After the hearing, the party that prepares the proposed order is required to send a copy of the proposed order to the other party and to the court. The party receiving the proposed order has five days from the time he or she receives it to notify the judge and the other party of any objections to anything that is incorrectly stated in the order, or to add anything that has been left out. If the objecting party does not make those objections known to the court, the judge will sign the order as written. It is a good idea to take notes about what the judge orders while he or she is ordering it in court so that you can remember what the order should say.
If you are asked to prepare the proposed judgment and submit it to the court, use the Cover Letter to Judge—Five-Day Rule (Form 26), and send a copy of the letter and the proposed judgment to your spouse at the same time that you send it to the court. Your spouse will have five days to object in writing to anything that he or she disagrees with in the order that you have prepared. The judge will then have you both come back to court, after reviewing his or her notes or listening to the tape of your hearing, and will decide whether the language in the judgment is correct.
If both you and your spouse appear without attorneys and you are awarded most of what you asked for in your complaint, the judge could ask you to write the order. Even if the judge or someone else writes the order, you will want to make sure it is accurate. Compare the order to your notes. If you think the judge has written something in the order that is not the same as what the judge said at the end of the trial, ask the judge about it immediately. Below are things that will be set out in the judgment:
- The amount of alimony and how and when it will be paid.
- How the property and debts are to be divided. (If any property deeds need to be signed, make sure the defendant signs them or ask the judge to order him or her to sign them.)
- The amount of child support and how and when it will be paid.
- Who will have legal and physical custody of the children.
- A change of name, if requested. (If you request a name change in the divorce, make sure that you get an official court seal on your order. You will need this when you request that agencies use your new name. If you are not sure whether or not you have an official seal, ask the judge or the court clerk. If you choose to use the new name, you will need to show your final order to any agencies that you want to use it. Agencies to consider contacting include your bank, the Social Security office, and the Motor Vehicle Commission.)
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Checklist for Filing Documents and Table of Documents— Forms 22 through 26A
Review your documents and package for the court to make sure that:
- You have filled in the appropriate blanks on the documents that you are sending or hand-delivering to the court.
- You have left blank the sections of the documents that must be filled out by the judge.
- You have filed an updated Family Part Case Information Statement (CIS) (Form 3A), with supporting financial documents, if your financial situation has changed substantially since the time you filed your complaint.
- You have sent subpoenas and a fee for travel at least five days before the date of your hearing to all uncooperative witnesses, demanding that those witnesses attend the hearing and testify.
- Every document is signed and dated, except for those left blank for the judge’s signature.
- You are sending an original and two copies of all documents to the court.
- You have prepared and enclosed a self-addressed, stamped envelope (an envelope with your name, address, and postage on it) for the court to use to return filed copies to you.
- You have the right amount of postage on your package. We suggest that you have your package weighed and stamped at the post office. The court will not accept mail with inadequate postage.
- You have kept at least one extra copy of all documents for your records.
- After mailing documents to the defendant, you have saved any green return receipt cards with signature or any envelopes stamped by the post office as “unclaimed” or “refused.”
- You have marked on your calendar:
- The date 75 days after the date that the defendant answers the complaint or, if the defendant files a counterclaim, the date 75 days after you file your answer to the counterclaim, in order to file your Custody and Parenting Time/Visitation Plan (Form 22) on time.
- The date 10 days from the date that you complete your pre-trial discovery, so you can call the court if you have not received a notice from the courts about your trial date by that time.
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