Introduction to New Jersey Family Law for Men and Fathers: A Divorce Guide
Family law for men and fathers in New Jersey addresses legal issues that could directly affect your family, such as divorce, alimony, child custody or child support. While these can be emotionally challenging and stressful situations to resolve, we believe that your experience as you go through the divorce process can be improved by having a better understanding of what is involved.
This guide is designed to help demystify your experience in the family law court as we represent you. You will find brief explanations for many of the legal terms you may hear me use, or your wife’s attorney, or a judge. Understanding the language of the court will make it easier for you to work with us and allow you to focus on the important elements of your case.
Introduction to Orders
An order is a document that states the decision of a judge or a court. It may be appealed although seldom is, because it spells out what must be done by either or both sides a divorce There are a variety of different orders that a judge might issue. The types of orders most common to family law as they affect men and fathers in New Jersey are:
These orders are the result of a case management conference. At this conference, the court decides the issues that remain in a case and then schedules what needs to be completed to resolve these issues before setting on a trial date. The case management order will often outline the dates for the exchange of financial information, for settlement conferences, for future case management conferences and for trial dates.
This is a Court Order signed by the judge divorcing the parties in a divorce case. It is referred to as a “JOD” or as an “AJOD.”
These are written agreements made between the you and your wife, then signed by a judge and filed with the court. The purpose is to make the agreements enforceable so that if one party does not comply with the agreement, you can use the court to enforce compliance.
Pendente lite is Latin for “while the matter is pending.” It refers to orders that are entered during a case before it has concluded. Most commonly, pendente lite orders involve questions of temporary support.
These are meant to protect sensitive information. They are created by the court, sometimes with the agreement between the spouses, to prevent certain information from being disclosed to others. The divorce process may involve confidential or sensitive material such as medical information or information regarding children. These may be crucial during litigation but confidential so that if one or both of the parties want to ensure that it is not used by the other party or outside organizations.
These orders may follow a divorce judgment and are commonly referred to as QDRO (pronounced “quadros”). Their purpose is to divide retirement accounts such as a pension or 401(k). The order allows the plan to be divided into two separate accounts so that the “plan participant” (the employee) and the “alternate payee,” (the employee’s spouse) can have separate accounts. It divides the money between both spouses. This is a tax-free event.
Commonly called a QMRO, this order involves obtaining or contacting insurance companies for medical and healthcare information. Normally, an insurance company can only disclose information regarding medical treatment, payment and insurance policy information to the insured or the policy owner. In certain cases, the spouse of the insured needs to be able to obtain information from the insurance company to ensure proper treatment of medical issues for children, as well as to discuss and resolve payment issues.
A universal order is a form that the Court prepares following a decision. While it does not contain all of the decisions, it is used by the Court to put some orders in writing.
Introduction to Discovery
Discovery takes place in the pre-trial phase of a lawsuit when each party can obtain information from the opposing party. We’ve listed a number of different ways the parties can ask for this information. If we file a discovery request and your spouse objects to it, we may file a motion asking the court to require your spouse to participate. Likewise, she may do the same thing of you.
These are third party evaluations used to estimate the value of different assets such as real estate, business interests, stocks, bank account, antiques, artwork and collectables and other investments.
This is an informal real estate appraisal commonly used in place of a formal appraisal. The market analysis is usually conducted by a real estate agent who first identifies properties of similar location and size and then compares them to recent homes sold. This information is the basis for estimating the likely sales price of a piece of real estate involved in litigation.
Depositions are face-to-face questioning, taken under oath by the opposing party outside of court. The answers are transcribed by a stenographer and may be used in court if the person being deposed gives different information or testimony at a later hearing.
Also known as a Request for Further Information, this is a set of written questions posed to the opposite party that must be answered truthfully, in writing, under the penalty of perjury. The answers must be returned within 60 days of when your wife or her attorney received them.
This is a written request to provide the other party with specific documents regarding assets, debts and other issues of the case. The documents must be sent to the requesting party within 30 days of receiving notice.
These are written statements about certain facts of the case sent from one person seeking a divorce to the other. They are asked to admit or deny the statements.
These are formal requests, served by the attorney representing any of the parties involved. There are two kinds of subpoenas:
- Duces Tecum requires the other person to produce certain documents at a certain time, such as credit card statements, bank accounts and tax returns.
- Ad Testificadum requires someone to come and testify under oath at a certain time and place.
Introduction to Parties
The different parties involved in court proceedings are referred to by common designations that reflect their role. These are the different Parties you are likely to find in Family Court.
The other person or the other attorney in a lawsuit.
A person or an office inside the Family Court who takes and files papers.
The person who gets sued.
An attorney who represents a child.
People involved in a lawsuit.
The person who begins a lawsuit.
When either the first plaintiff or first defendant adds a defendant to a lawsuit, they become a third-party plaintiff.
Introduction to Pleadings
Pleadings are formal written documents or statements filed with the court that contain the respective position, or point of view, of each party. They are used to define the issues and narrow them down to the essentials as identified by each opposing side. By stating what claims and defenses are at issue, pleadings establish the issues to be decided by the court.
This affidavit requires the person to inform the court about all of the insurance policies they have. The person must also certify that they have not and will not change insurance coverage without the court’s permission while the case is pending.
This is a response to a complaint. It is usually a general denial of most of the statements set forth in the complaint.
This refers to the plaintiff’s answer to the defendant’s counterclaim. It is usually a general denial of most of the statements made by the defendant in the defendant’s counterclaim.
This document contains all of the financial facts for each party. It must be filed with the court when there is an issue of alimony, child support or equitable distribution. (See alimony, child support, and equitable distribution below.)
A complaint is the first pleading filed in a lawsuit.
A counterclaim is filed by the defendant and is part of the defendant’s answer.
When the defendant receives a copy of the plaintiff’s complaint but does not file an answer or counterclaim 35 days after receiving it, the defendant is considered to have defaulted. The plaintiff’s attorney can then file an entry of default.
A Motion is a written request from one of the parties in a lawsuit asking the court to give that person something by entering an order against the other person.
The purpose of this type of motion is to enforce an earlier court order. It typically comes into play when one party did not do something they were ordered to by the court.
This pleading, filed by the plaintiff in a divorce case, asks the court for everything the plaintiff wants the judge to give the plaintiff when the judge grants the divorce. It is filed when the Defendant does not answer the Plaintiff’s complaint.
This pleading tells the judge what kind of parenting time or visitation you want to have with your children as well as what kind of parenting time or visitation you want the other party to have with your children.
These papers, filed by the attorneys before a trial, tell the judge how you want the case to be decided, what the facts of the case are, the documents you will be presenting at trial, and the witnesses who will be called to trial.
This details the agreement between the husband and wife when they have worked out issues such as distribution of property, parenting, child support and spousal support. It gets filed with the court. The court does not determine whether or not the agreement is fair. It only decides whether both people agree to and understand the agreement.
This pleading is filed with a panel of attorneys that the court assigns to hold an early settlement panel or ESP. (See ESP below.) The statement of issues sets forth all the issues of a case and states your position for how they should be resolved.
This document is submitted by the lawyers before a trial date and indicates the facts of the case, the position of each party and the law that will be used to support their respective positions.
Introduction to Hearings
A court hearing for a man or father getting a divorce in New Jersey is a gathering in a courtroom before a judge with the purpose of conducting some type of legal procedure. A hearing is different from a trial in that it is usually shorter and often less formal. These are the most common hearings in family court.
These conferences are scheduled throughout the litigation process. The purpose is for the court to determine what issues have been resolved, what issues are outstanding and what court hearings are necessary to resolve these issues prior to trial. The court will use that information to establish time frames, schedule upcoming hearings and select a trial date.
The four people attending this conference include the plaintiff, the defendant, and each of their lawyers. The meeting is held at one of the attorney’s offices with the purpose of discussing a settlement.
Contempt proceedings take place if one of the parties does not do something the court ordered them to do. Punishment for contempt can include arrest, financial sanctions, additional orders for relief or other forms of court ordered sanctions.
These hearings are scheduled once a defendant has failed to file an answer to the divorce complaint within the specified time frame. A default hearing closes out the defendant’s ability to file an answer and allows the plaintiff to go forward with the divorce to request alimony, child support or equitable distribution on terms that they propose to the judge.
This is a confidential settlement conference where the court brings in local attorneys who are experienced in family law cases. You and your wife write how you each want the case to be settled and give that information to the attorneys on the panel. The attorneys review the submissions and make a recommendation for how the case should be settled. If both people accept the panel’s recommendation, the case is settled and the parties are divorced. If the parties do not accept the recommendation, the case continues and all information from the hearing is confidential. This hearing only occurs in divorce cases.
The purpose of this hearing is to resolve the economic issues in the case such as equitable distribution of marital property and support. You and your spouse choose a lawyer who you work with to create your own mutually acceptable agreement. This option follows the early settlement panel and only takes place if the early settlement panel is unsuccessful.
In family court, a final hearing may be scheduled to address two situations.
- It may take place after the entry of a default pleading (when a defendant does not respond to a complaint). At such a hearing, the judge decides whether or not to award alimony, child support or equitable distribution.
- A final hearing may also take place when cases are settled. In that instance, the court’s role is to determine that the agreement is reasonable and not the result of undue pressure or coercion. The court does not decide whether the settlement was fair, only that both parties freely agreed to it.
This process provides you and your wife with an opportunity to resolve your differences and reach an agreement outside of the courtroom. With the help of a trained mediator, families are encouraged to resolve as many of the economic and custody issues possible. Family mediation is mandatory, but participants can use their own discretion as to whether they accept an agreement or not. All discussions are confidential and cannot be used later in court.
This is a court ordered meeting held at the courthouse. Participants include the plaintiff, the defendant and attorneys for both. All the participants are required to spend most if not all of the day in settlement discussions. The judge does not attend but will meet with the attorneys to provide guidance during the day if requested. New Jersey requires at least one intensive settlement conference before a trial can be held.
A court may encourage opposing parties in a lawsuit to resolve their issues themselves by ordering mediation. In these cases, a trained mediator is brought in to facilitate a meeting between both parties in the hopes of reaching a settlement outside of court. There are two types of mediation the court can order:
- Family mediation and
- Mediation for custody.
Both forms are usually directed by the court unless there is a final restraining order.
These hearings take place when a lawyer asks a court judge to review a case and then decides based on the evidence presented to them. Attorneys can also request a case be dismissed. Motion hearings are granted at the discretion of the judge after a motion has been filed. Oral argument or motion hearings are held only if the judge believes that additional information or clarification is necessary.
When an attorney speaks before a judge in a courtroom and presents the legal reasons to support his/her case, it is called an oral argument.
This is a court-ordered mediation session that is required at the beginning of all divorce cases in an attempt to remove custody issues from a judge’s decision. The purpose is to encourage the parties to discuss and set a parenting schedule themselves.
When children are involved in a divorce case, often the court’s first step is to order both parties to participate in this workshop. During the workshop, the parents view a videotape discussing the types of issues they will likely face as they litigate their divorce case. The intent is to encourage both parents to take an amicable approach as they discuss issues such as parenting time and custody, and do so in a way that does not hurt their child in the process. This is because New Jersey divorce law puts the best interests of the children above all other issues in terms of importance.
This is a short but complete trial. Witnesses are called to testify and trial briefs are normally submitted but it does not last as long as a traditional trial. These trials are held when only a few issues need to be resolved.
These meetings are usually held outside of the courthouse by you and your wife and the attorneys in an attempt to resolve issues, reach a settlement and thereby avoid going to court.
When a case management conference is held in the middle or end of a case, it may be called a status conference. As with the case management conference, the purpose is for the court to identify the remaining issues and schedule the actions necessary to resolve these issues.
These are final hearings in which opposing parties testify to the issues of the case and the judge makes the final decision.
Introduction to Motions
A motion is an oral or written request made to the court requesting a ruling, or an order on a particular point. A motion can be made before, during or after a trial by anyone named in a court case on either side. It’s a common court procedure for deciding issues that come up during the course of a lawsuit.
These are sworn statements by either of the people who are involved in a lawsuit, witnesses to a lawsuit and, sometimes, attorneys. These statements are offered to support a formal request that is being made by that person, such as a motion.
This is a formal statement of the requests that a person gives to the judge, in effect, notifying the judge when they file a motion.
This is a formal notice required by the rules of court that is attached to motions. It notifies the opposing party about how and when they must respond to the motion.
The following are additional terms men and fathers in New Jersey may encounter in family court.
Also known as spousal maintenance, this is money paid by one spouse to support the other spouse during and following a divorce. Alimony awarded in the divorce can be temporary, lasting for a limited time, or permanent and is intended to continue into the future. Different from child support, alimony is paid by the “supporting spouse” to the “dependent spouse.” The general rule is that a spouse is dependent when he or she earns less money than the other spouse.
This is an application filed to a special court that reviews trial court decisions. When a divorce or custody matter is involved, first you go before a trial court judge. If you are unhappy with that decision, you can file an appeal to a higher court. There are two main kinds of appeals:
- An appeal of right from final decisions – This appeal can be filed for any final decision that you are displeased with so long as you file within 45 days from the time the court made its decision, even if you were not immediately notified.
- An interlocutor appeal – This allows you to appeal an issue that is decided while the case is still pending or before all of the final decisions have been made. You can only file if the appellate court gives you permission within 20 days from when you received the judge’s decision.
This is a request to move a scheduled date to another day. Adjournments are very common in motion hearings and are routinely granted.
Best Interest Report
This refers to a report conducted by the probation department of the court in custody cases. It normally deals with an interview of both the father and the mother, a home inspection, a work inspection, a police background check and each person’s versions of the history of the case. It is used by the court to try to make a custody decision.
Chancery or Chancery Division
This is the name of the court that handles family cases.
This is the amount of money one parent who does not have the children living with them most of the time pays to the other parent.
Child Support Guidelines
These guidelines are a predetermined, mathematical computation adopted by New Jersey which determines how much one parent pays to the other parent for child support. The amount of child support is based, primarily, on the income of you and of your wife.
Contempt is a person’s failure to abide by a court order.
This is a general term that is used to describe letters, faxes and memos sent among the different parties in a lawsuit.
This refers to the legal relationship between a parent and their child. There are different types of custody:
- Legal Custody refers to the parent who makes the important decisions regarding a child such as education, religion, medical treatments, residency and similar issues.
- Physical Custody refers to the parent with whom the child lives most of the time.
- Joint Custody means that both people should be involved in the important decisions regarding the child and share physical custody of the child.
- Sole Custody is when only one parent is awarded custody of a child.
- Primary and Secondary or Custodial and Non-Custodial refers to how much time or responsibility each parent has for the child. The primary or custodial parent is normally the parent that has the child living with them, whereas the secondary or non-custodial parent has parenting time or visitation with the children less often.
Note Regarding Custody: A parent’s custodial or non-custodial, primary or secondary status does not affect legal custody issues. Only joint and sole custody decisions affect legal custody.
This number is assigned by the court clerk who uses it to keep track of cases with a system known as a docket. Each new case is assigned a number which it will keep for as long as it takes to conclude. The number provides specific information about the case, such as the type of case, the county where it’s taking place and the year it was filed.
This term is used by courts when discussing how to divide assets and debts between a husband and wife in a divorce case. Equitable does not necessarily mean that assets and debts are divided equally. The court may use a more complex formula that considers many factors.
These are attachments to motions and pleadings that get filed with the court. Exhibits are usually copies of documents used to prove the allegations and statements made in the motions and pleadings.
The specific division that handles primarily divorce, juvenile, custody and support cases.
This is another word for visitation.
Also known as an Order of Protection, this is a court order that restrains, or prevents one person from contacting the person requesting the order. If the court grants you a restraining order against your wife, it can instruct that person to stay away from your home, workplace or school. A restraining order is enforced by the police and violation of this order is a criminal matter.
If you – or a man you know – is contemplating a divorce , feel free to call us or any of the attorneys at the Micklin Law Group. Reach us at either 973.562.0100 in Nutley or, in Montclair, at 862.245.4620.