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I.
The Process
Marriage,
divorce, and related matters are governed by state law. The
New Jersey legislature established grounds for divorce by
statute and can change these grounds. Many other states provide
for divorce on grounds of "incompatability," "irreconcilable
conflict," or "breakdown of marriage." Many
others still require that there be alleged and provided an
act of "fault" or that the parties have lived separate
for a certain length of time. In the State of New Jersey,
a Complaint for Divorce must allege one of the following grounds,
and without one of these the Court is not authorized to grant
a divorce:
1.
Adultery
2.
Desertion
3.
Extreme Cruelty
4.
No Fault Separation
(living separate and apart for 18 months in different homes)
5.
Habitual Drug Addiction
6.
Habitual Drunkenness
7. Institutionalization for Mental Illness
8.
Imprisonment
9.
Deviant Sexual Conduct
Whatever
ground for divorce a party relies on, it will have to be proved.
The exact type and amount of evidence necessary to prove a
certain ground is established by prior cases, which your lawyer
makes it his or her business to know. In this State, there
must, at some point, be a hearing at which it is possible
that at least one witness besides yourself will have to testify
about the allegations.
You will
be asked to provide your lawyer with certain relevant information
on a confidential questionnaire from which we will get the
necessary facts for preparing and filing legal documents æ
a complaint if you are suing or an answer and/or counterclaim
if you have been sued æ with the Court.
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II.
Mechanics And Chronology
Once a
divorce petition is filed or answered, it is generally at
least two years before the Court hears the case as a contested
trial. Since each individual case may vary, this period could
be longer especially in the event of a contested divorce,
complex property settlement, or disagreement over custody
or support money.
After
the initial "complaint" has been filed and served
on the other party, if the other party intends to answer and/or
file a counterclaim, he or she must do so within 35 days.
Your spouse may accept service at the clerk's office to expedite
the proceeding and avoid being served at work or home, or
have an attorney accept service. After this period has gone
by, and an Early Settlement Panel meeting has occurred, a
hearing can be scheduled. After the hearing, it takes a number
of weeks for the final decree to be signed by the Judge and
to receive a final copy from the Court.
Our law
firm will expeditiously handle your case and answer for your
legal responsibilities. If your desires or circumstances change,
we ,of course, cannot answer for any extra delay that this
may cause. We represent you and stand ready to advise you
and to do what you instruct us to do, as long as it is within
reason. We are always pleased to hear any good news of reconciliation,
and in the event that you decide at any time to withdraw from
any litigation which is before the Court or in the process
of being prepared, please notify us at once so that we can
keep the legal process from going any further. Otherwise,
we will prepare documents which you must read and sign for
filing with the Court and then we will notify you of the trial
date as soon as we know it usually several weeks beforehand.
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III.
Separation Agreements (Property Settlement)
Many of
the matters incidental to a divorce can be more expeditiously
disposed of if they are settled between the parties and not
contested in Court. The matters that are agreed on can be
presented to the Court in a contract signed by husband and
wife, called a Property Settlement and Support Agreement.
It can deal with property division, support money, custody
and visitation, insurance and many other subjects. If the
Court accepts the agreement, it will adopt it as part of the
final divorce decree and give the agreement the strength of
a Court order, enforceable by contempt proceedings. For billing
purposes, a divorce is not considered "uncontested"
if the agreement is arrived at after substantial attorney
negotiations.
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IV.
Specifics
Property
Matters: Property ownership and division of assets of
a marriage are usually decided at the final hearing. If the
respective parties to a divorce can agree on division of properties,
then this may be incorporated into a property settlement to
be presented to the Court for incorporation in the divorce
judgment.
Support
of Wife/Children: While a case is pending, a husband (and
in some cases, a wife), is liable for the support of a spouse
and/or certain children. If the parties cannot agree upon
an amount, then the Court will determine this amount. The
support amount is based upon earnings of the respective spouses
and needs of the support recipient. A support order will likely
be part of the final divorce decree.
Child
Custody: If child custody and visitation rights cannot
be agreed upon, then the Court will establish them.
Woman's
Name: A married woman's name can be changed by the Court
in the divorce decree, and she should specifically ask for
this now if she desires it.
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V.
Interim Coercive And Emergency Relief
It is
possible to obtain immediate financial support from a spouse
and an immediate temporary custody order from the Court as
soon as a divorce complaint is filed. In an appropriate case,
one party can be temporarily barred from certain premises
or put under a Court order to keep her/him from attacking
or threatening the other or removing the children. If you
think you will need such special relief, please mention it
to your counsel immediately.
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VI.
Responsibilities of Attorney and Client
You, as
the client of our law firm, are entitled to expect us to preserve
your confidential communications and to prosecute your case
to the best of our professional ability. The facts of your
case will be the chief determinant and the outcome will be
in the sole discretion of the Court æ subject to appeal
if necessary. You are responsible for keeping us informed
as to all facts.
Frequently,
legal aspects of a domestic proceeding closely involve other
family members and third parties. After you have deposited
an amount of money with us as a retainer, you will be regarded
as having established an attorney-client relationship with
us. Once this relationship exists, you will not be asked to
relay specific settlement proposals to an estranged spouse.
This creates ethical difficulties for the lawyer under the
Code of Professional Responsibility because it involves bypassing
the other party's lawyer. This is regarded as taking advantage
of the other party. For the same reason, you cannot expect
us to talk directly to your spouse.
As the
client, your first major responsibility will be to work out
the course of the continuing personal relationship with your
spouse and, as the case may be, your children. This does not
mean that we will not be available to discuss the legal aspects
of day-to-day problems, but our fees are based on time spent
on a case (including telephone conversations) and there is
no need for you to increase your legal fees unnecessarily.
Your second
responsibility will be to inform us of any relevant changes
in your domestic situation æ especially a reconciliation.
When Court
appearances are scheduled, it will be your responsibility
to be present on time at the designated courtroom in the County
Court House. If we determine that witnesses are required to
be present on your behalf, you will coordinate everything
with them and be certain they know when and where to be. If
you are the complainant, then you may need corroborating witnesses.
You will
have to produce records of your total income, whether from
wages, fees or investments, and all of your assets, and furnish
a complete list of debts and liabilities, including amounts
required to meet all installment payments. Keep complete notes
regarding all living expenses for yourself and for any children
or other dependents. When not able to state exact expenses,
you should make your best reasonable estimate. Always attempt
to be fair to yourself as well as your spouse. A wife will
certainly get no more than she asks for, but ought not to
ask for either more or less than she reasonably needs. Keep
in mind the fact that judges are very experienced in these
matters and will quickly recognize exaggerated demands.
Our experience
has been that most matters truly necessitating emergency evening
discussions are matters involving concern for physical well-being
and, if there is a genuine emergency, the best procedure is
to call the police directly. As lawyers, we represent you
in the courts but we can do little to help you at your home.
We are not the police and have no more authority than anyone
else to intervene.
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VII. Contacting Law Firm
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We stand ready to diligently pursue any matters on your behalf.
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The office is generally open from 8:30 a.m. to 6:30 p.m.
(Telephone
732-517-0900).
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When calling the office to leave information or make inquiries,
you will find all of the secretaries and staff cooperative.
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VIII.
Miscellaneous
Domestic litigation
is a part of American life and almost everyone has been directly
or indirectly involved in domestic proceedings. Thus, you can expect
to be exposed to a great deal of folk wisdom concerning divorce
proceedings. This is the most honest and readily understandable
statement of realities of divorce practice our firm could produce
in the form of a brief handout. It is designed to make you more
knowledgeable about divorce law and less vulnerable to misinformation
and uncertainty. This statement is not intended to be a survey of
the law and, due to the importance of the individual facts, the
generalizations contained herein should not necessarily be applied
to any particular case. Also, changes in the law could at any time
make parts of this statement obsolete. However, you may be assured
that this firm is particularly conscious of the changing law and
well equipped to stay abreast of the latest developments, both in
state and nationally.
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