Whether you are considering filing for a divorce, seeking an annulment, or have already separated from your spouse, it’s important to educate yourself regarding the divorce laws that will influence your situation. Amy Harris, a New Jersey divorce lawyer explains different aspects of the divorce process, including grounds for divorce, the average cost, length of a divorce, and common pitfalls to avoid.
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Divorce Magazine Podcast: New Jersey Divorce Lawyer Amy Harris Discusses Grounds for Divorce & Annulment
Hosted by: Diana Shepherd, Editorial Director, Divorce Magazine
Guest speakers: Family Lawyer – Amy B. Harris. Matrimonial attorney Amy Harris of Keith, Winters & Wenning, LLC has more than 15 years of experience and practices family law exclusively. Located in Bradley Beach, has been admitted to both the New Jersey and Pennsylvania bars. For more information about Amy or her firm, please visit www.kwwlawfirm.com.
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Read the Transcript of this Podcast Below.
Under what grounds can a marriage be annulled in New Jersey?
Amy Harris: There are several different grounds for an annulment in New Jersey. The number one reason is that the parties discuss having children prior to marriage, but then once they are married one party says they don’t want children. Another of the grounds is fraud – meaning one of the spouses was not made aware of a particular circumstance prior to the marriage. Other causes for annulment include incest, one party being married to someone else, or one party not being of sound mind – for instance, if their mental condition was in question or they didn’t have the ability to understand what they were doing at the time of the marriage.
Why would someone opt for an annulment rather than a divorce?
Amy Harris: The reason someone would choose an annulment versus a divorce is a personal one. Reasons for an annulment arise prior to the actual marriage, but the reasons for a divorce arise during the course of the marriage. It’s a personal decision as to which one you want to file for.
What are the grounds for divorce in New Jersey?
Amy Harris: There are several different grounds for divorce in the state of New Jersey. One of those grounds is 18 months’ separation, meaning you must live separate and apart for 18 consecutive months. Another ground is irreconcilable differences, which means the parties no longer get along and there is no reasonable prospect of reconciliation. Other grounds include extreme mental cruelty, adultery, desertion, addiction, incarceration, and deviate sexual conduct. The reason for divorce does not impact the final results of a divorce. In other words, you can file under any grounds for divorce and it will not impact how your divorce settles.
Is there ever an advantage to settling under one of the fault grounds, possibly in terms of property division where marital funds were spent on an affair?
Amy Harris: In New Jersey, the reasons for divorce do not have an impact on the outcome. Unfortunately, many people think they can file for a divorce under adultery and that will get them more at the end of the day. Your reason for divorce doesn’t matter. The laws of equitable distribution and support are independent of the reason for divorce.
If one spouse won’t agree to a divorce, can the other spouse proceed without their agreement?
Amy Harris: Absolutely. There does not need to be consent for divorce in New Jersey. Once the complaint for divorce has been properly served on the defendant, he or she has 35 days to respond. If the defendant does not respond in a timely fashion, the plaintiff can file for default and the divorce will proceed and be granted without any participation or input from the defendant.
How long does the divorce process take in New Jersey and what can someone to do shorten it?
Amy Harris: Every divorce is different. Divorces involving major custody disputes will take much longer, because we may need to use the services of an expert. The expert will take a lot of time with the parties and the children in order to render a fair and reasonable recommendation. Divorces requiring expert input tend to take a very long period of time.
If you have a simple divorce in which there is no property distribution, no children, no request for support, then the process can probably be completed within three or four months.
In terms of expediting the process, make sure everyone involved is reasonable in their positions and understands that a divorce settlement requires compromise on both sides. Unwillingness to compromise will drag the process on for a very long time and it will become very costly to both sides if the parties are using attorneys.
For how long can a party drag out the divorce process? Is there a point when the judge will step in and order them to proceed?
Amy Harris: At some point in time, the judge will get fed up and schedule the matter for trial. Judges like to see divorce cases move along. In a case involving a custody battle or business evaluation, the judge doesn’t have the ability to expedite the process because the parties may be waiting for reports from the experts. However, in cases where someone is unnecessarily adjourning court dates, a judge can say, “I am moving this case along and we are going to start trial as soon as possible.”
How much does the average divorce cost in New Jersey?
Amy Harris: The cost of a divorce is contingent upon the facts and circumstances of the case. I have seen divorces that cost $2,500 from start to finish; I have also seen divorces that cost well beyond $200,000. It’s very much contingent on the facts of the case and what issues need to be resolved.
What are the best strategies for divorcing couples to keep their costs down?
Amy Harris: Compromise is very important in terms of keeping costs down. If the parties are using attorneys, suggest a four-way conference as a way to settle certain issues very quickly. If the attorneys and parties are able to sit in a conference room, be as friendly as possible, talk about the issues, and come up with creative ways to resolve the issues, then the divorce can be settled sooner rather than later.
Also, the parties should have their finances in order. Educate yourself if you haven’t been involved in the finances of the marriage; become familiar with your tax returns and your credit card debt. Then when you go to your attorney, you’ll be able to explain your current financial picture and the attorney will be able to better analyze your case and let you know what to expect going forward.
What pitfalls should someone watch out for in the divorce process?
Amy Harris: One of the pitfalls is getting very angry about a divorce filing and stopping the mortgage payment or dropping the other spouse from the health insurance plan. It’s important to understand that New Jersey laws require you to maintain the status quo when going through a divorce. If the family arrangement is that both parties’ paychecks are deposited into a joint bank account to pay the bills, then that has to continue. No one should stop the direct deposit into the joint account or cut the other spouse off from the health insurance – doing so would result in motion practice, which is very adversarial and very expensive. The process is much easier if everyone can maintain the status quo despite the divorce.
What is the first step someone should take after deciding that he or she wants a divorce?
Amy Harris: The very first step is to sit down with an experienced matrimonial attorney who can explain the process. Do not seek advice from Google or from your divorced friends, because that will produce bad information. Every divorce case is different. The cost is different, the incomes are different, and the assets and liabilities are different. Sit down with an attorney who can give you sound advice.
Is there such a thing as a legal separation in New Jersey?
Amy Harris: There is no such thing as a legal separation in New Jersey. People can separate and create their own arrangement in terms of handling the children and the finances, but there is no legal aspect to it. If they prefer not to proceed with a divorce and want to stay separated, I strongly recommend filing an application under an FD docket – which is not a matrimonial docket. It’s a non-dissolution docket that allows for a court order to memorialize whatever type of relationship you have regarding custody or finances, and it will be enforceable going forward. However, if you don’t memorialize it via a consent order under a docket number, anyone can back out of the arrangement.
If someone doesn’t know where their spouse is, can he or she get a divorce without locating the other party?
Amy Harris: Yes. There are New Jersey laws to handle that very situation. One option is to serve the defendant via publication, meaning that we take out an ad in a local newspaper and include the facts of the case, the docket number, and the caption to give the other spouse notice that the case is pending in court. You can also hire a private investigator to try to track someone down or you can do research on the Internet to try to find someone.
If you are unsuccessful in finding the other spouse, an affidavit of inquiry can be filed with the court outlining all the steps you have taken to track down your spouse. As long as either the plaintiff or the attorney can prove that they have used due diligence in searching for the defendant, the court will likely grant the divorce without the service on the defendant of the complaint for divorce.
I recently read an article about a service of complaint being delivered via social media. Do you think this is going to happen more and more in the future?
Amy Harris: Social media is the wave of the future. As long as you can prove that the person saw it and that it was actually sent to their Twitter, Facebook, or LinkedIn account, then it would be considered good service on a defendant. Many people are not opening their mail anymore, but they always have their face in a computer screen or on their phone. Why shouldn’t their spouses be able to serve them via social media?
What can a divorcing person do if he or she feels that their lawyer is not answering their questions or is unresponsive?
Amy Harris: It is important that you have a certain comfort level with your lawyer. You spend a lot of time together and you’re relying on your lawyer for good information. There is nothing wrong with speaking with another attorney to get a second opinion on your case. If you feel more comfortable with another lawyer, you can obtain a substitution of attorney where your present attorney is replaced with your new attorney. The substitution is filed to make the court aware that you have obtained new counsel.