How to File for Divorce – Part 1

There are many ways to file for divorce: litigation, mediation, arbitration, collaborative law, and direct settlement. Ultimately, all roads end at the courthouse, as only a Superior Court Judge can dissolve a marriage. Whether the dissolution occurs following a settlement agreement or a trial, is dependent on you and your spouse. Statistically, less than 1% of divorce matters go to trial and most are resolved by way of a settlement agreement. Given all the options to get from point A to point D(ivorce), how do you decide which one is best for you? You know what I’m going to say - I am a lawyer after all:

It depends.

This article provides a brief overview of some of the common processes available to file for divorce. Several factors may weigh in on your decision of how to proceed, including, but not limited to: where you are emotionally, your comfort level with understanding your family finances, and whether custody is contested (to name a few). First and foremost, you should speak to an attorney for an initial consultation. Many attorneys, including those at my firm, offer free consultations so you have nothing to lose. The following information is not meant to be legal advice and is for informational purposes only.

Are you and your spouse on good terms and do you have a good understanding of your marital finances?

If so, you may want to work together on a settlement agreement. Full disclosure is necessary before a settlement agreement is drafted and signed, meaning that both parties will need to complete Case Information Statements AND certify to the truthfulness of the disclosures. Your settlement agreement should address all issues: assets, debts, child support, parenting time, child-related expenses, college, childcare, retirement accounts, alimony, sale or division of the home, life insurance, health insurance, co-pays, etc. Nothing should be left to chance or the hope that you’ll be able to work it out later. Circumstances change and what may be a friendly relationship now, might not be friendly later. If it remains friendly that is wonderful, especially if you have children, but either way, don’t take a chance of having to litigate anything down the road. It feels like going through your divorce all over again, and no one wants that.

Are you and your spouse unable to communicate but have a good understanding of your marital finances?

If so, mediation might be a way to reach a settlement agreement. Most if not all mediations during the pandemic have been occurring remotely via virtual platforms like Zoom. Virtual platforms place parties in different virtual “rooms,” so you do not need to be in the same “room” as your spouse if you are uncomfortable facing your spouse while negotiating. There are a few options on how to proceed with mediation: you and your spouse can meet with a mediator without attorneys; you and your spouse can attend mediation with your respective attorneys; or you OR your spouse can hire a lawyer to come with you to mediation (in this case, one of you would be represented and the other would not; this may be a great option if there is an imbalance of power in the relationship).

Are you and your spouse unable to communicate and are in the dark about your marital finances?

Then hiring a divorce lawyer will be a good place to start. Together we will work on a strategy, gather the information necessary to help you make an informed decision (known as discovery), and ensure all issues arising from your divorce are addressed in a settlement agreement or appropriately litigated.

Once a settlement agreement is reached, the Court will need to be advised and your matter will be set down for an uncontested hearing. At the hearing, the Judge or your attorney will ask you questions including, but not limited to, your understanding of the agreement and whether you have entered into the agreement without coercion or while under duress. At the conclusion of the uncontested hearing, the Judge will grant you a divorce and you will receive a formal Judgment of Divorce and your fully incorporated settlement agreement.

Stay tuned for the next installment in this article series. Part 2 will clarify the processes involved in the first half of a divorce in more detail. Part 3 will bring you through the second half.

If you would like to explore the above options or learn more about other ways to file for divorce, including the Collaborative Divorce process or Arbitration, please contact me, Jessica N. Mazur at jmazur@hoaglandlongo.com or call me at 732-545-4717 x3859.