Serving New Jersey: Bergen County, Essex County, Passaic County, Hudson County.
Family Law services include divorce, child custody and support. |
Telephone Consultation: 1.866.912.2125 or 1.201.585.7477
E-mail Consultation: Brian@ItonLaw.com
Office Consultation:
Call 201.585.7477 to set up an appointment.
(Evening Appointments Available) |
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What Is An Uncontested Divorce?
There are two types of uncontested divorce. The first is a default divorce where one spouse does not respond at all to divorce papers served on them. A complaint for divorce is served on the spouse by
a private process server or
the county sheriff and the defaulting spouse does nothing. Thirty-five (35) days pass and the husband or wife does not file an answer to the complaint for divorce served on them, and never seeks to petition the court to contest the documents filed by the other party. The court enters a judgment of divorce and the non-responding party, having passed on their opportunity to contest or negotiate the terms of the divorce, accepts whatever the final court order states.
The second type of uncontested divorce is a pre-negotiated divorce where the husband and wife work out issues relating to payment of alimony, child support, distribution of joint property, and custody and visitation, and then go to court to enter their divorce agreement. The husband and wife can work out the terms by themselves, through mediation or through their attorneys. In this type of uncontested divorce there is negotiation between the husband and wife. Their attorneys usually finalize their agreement through a document called an Interspousal Support and Property Settlement Agreement, which is incorporated into the divorce. back to top 
What Is A Contested Divorce?
A contested divorce is a divorce where the parties resolve all or most issues through the court. At the extreme is a divorce where the parties cannot agree on any issues, and ask the court to rule on every single issue: (alimony, child support, property distribution, custody and visitation). The key differences between contested and uncontested divorces are the following:
Time Involved:
A default divorce can take as little as (3) three months from filing to signing of the final divorce decree by a judge. A contested divorce can drag on for months due usually to delay by one or both parties with respect to handing over financial documents.
Costs Involved
Financial:
What makes a divorce expensive is the lawyer hours spent. If one side does not contest the divorce (by defaulting) your lawyer does not have to spend anytime negotiating with the other side. He can just put your divorce through with no opposition. From a financial standpoint a default divorce is by far the least expensive route to divorce. Conversely, a contested divorce, where every issue is fought in court, requires a huge expenditure of lawyer time, drafting, filing, and arguing motions on every issue.
Emotional:
The emotional costs in any divorce are incredibly high. A divorce is the legal dismantling of a relationship and the legal restructuring of a family. If you have children you and your spouse will always be family, but not the way you thought on your wedding day.
In an uncontested divorce, either default or pre-negotiated, the issues are either worked out outside of court or they are not even contested. However, getting served with a complaint by your partner, and (if fault grounds are alleged) reading what seem like incredible lies about your personal life in the complaint, is emotionally unsettling.
In a contested divorce the emotional pressure can be enormous. Battling someone who you once loved and may still love is a brutal experience. Having your relationship, your finances, your actions, examined under a microscope by your spouse's lawyer is unpleasant to say the least.
Level of Satisfaction by Both Parties:
Parties who are involved in negotiating the terms of their divorce are generally less dissatisfied with the divorce process then people who fling the major issues: equitable distribution, child custody, visitation to a Superior Court judge to decide. If a judge decides, in each parties mind the judge will have gotten some issues wrong. The fully contested divorce often leads to continuous post-divorce motions for modification or worse non-compliance with the divorce judgment. back to top
The Mechanics of A Default Divorce:
The following are the steps for a default divorce:
1. First meeting with your attorney:
Your attorney asks you questions about the date, place and length of your marriage in order to determine jurisdictional issues. He then explains the different grounds for divorce - separation for 18 months, abandonment, extreme mental or physical cruelty are the most common grounds. As well, you and your attorney discuss alimony or maintenance, child support, child custody, visitation (co-parenting), equitable distribution of property, and other issues.
2. Your attorney prepares the complaint, summons, and certificate of insurance coverage. He also decides whether a Case Information Statement must be prepared and filed.
3. You review and sign the complaint.
4. Your attorney files the complaint with the Clerk of the Superior Court and pays the filing fee. He then sends the summons and complaint to the Sheriff or private service company(with service fees for service and mileage).
5. The Sheriff or private service company serve the summons and complaint on your spouse. Your spouse has 35 days to file responsive papers - an answer or an appearance.
6. If your spouse fails to file responsive papers your attorney prepares an affidavit of non-military service, and a request to enter a default (with a certification attached). In appropriate circumstances he also files a certification of non-applicability of the Case Information Statement.
7. Your attorney receives a date for the default hearing from the court's trial calendar coordinator.
8. Your attorney prepares a final judgment of divorce. On the day of the hearing you are placed under oath. Then your attorney asks you a series of questions, which you answer. Your answers are oral testimony. Your answers prove the grounds for granting you a divorce.
9. After the testimony, if the judge is satisfied with the proofs presented through your oral testimony he or she requests the final judgments of divorce prepared by your attorney. The judge signs the judgments and his secretary seals them.
10. The final judgment is mailed by your attorney or otherwise served on your spouse. The divorce is now final. back to top
The Mechanics of A Pre-Negotiated Divorce:
In a pre-negotiated divorce husband and wife, negotiate the issues of child custody, visitation (co-parenting), child support, alimony or maintenance, and equitable distribution. In the best case, both parties are represented by an attorney. An agreement is hammered out, and is formalized in an Interspousal Support and Property Settlement Agreement, which is incorporated into and survives the final divorce. back to top
The Mechanics of A Contested Divorce:
In a contested divorce, numbers 1-5 listed above are identical. The difference is that your spouse files responsive papers and possibly a counterclaim, and the matter is litigated from that point. Case Information Statements are exchanged, formal discovery takes place - interrogatories are served, depositions are scheduled and taken, and the matter is set for trial of the issues. There are mandatory pre-trial settlement conferences, and most often if a trial does take place, it does not encompass all issues. If there is a trial, the judge determines the facts and applies the law. Then he or she issues a final ruling. back to top
Increasing or Decreasing Alimony or Child Support After Divorce:
If there are issues relating to child support or alimony the final judgment of divorce will usually require one party to pay the other a certain amount weekly or monthly. After a few years both parties financial circumstances may have changed such that the amount awarded under the judgment of divorce needs to be modified. The standard for seeking a modification of a judgment (either increasing or decreasing the amount to be paid) is "changed circumstances". The party bringing the post-divorce motion must make a showing of changed circumstances sufficient to have the court schedule a hearing on the matter. back to top
Enforcing Non-Payment of Child Support or Alimony After Divorce:
If there is non-compliance with the judgment of divorce. For example, a husband ordered to pay alimony pays less than the amount ordered and on an inconsistent basis, an enforcement motion may be brought by the wronged spouse. back to top
Disclaimer:
The information provided on this website is for general informational purposes and is not intended to be nor should it be construed as legal advice.
The information is provided to appraise the public of general information on the law. It is understood that no attorney-client relationship is entered into by sending, receiving or answering e-mail queries.
It is also understood that generally a retainer agreement must be read, understood and signed by an attorney and any prospective client before an attorney-client relationship is commenced. back to top
Contact Information
Phone: 1. 866. 912. 2125
E-mail: brian@itonlaw.com
Copyright © 2006 Brian D. Iton, Attorney at Law. All rights reserved.
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