New Jersey, like other states, administers its divorce laws on the principle that it is pointless to force a couple to remain married if even one spouse wants a divorce. And sometimes, that is the case, meaning one of the spouses wants a divorce and the other one doesn’t.
However, the reluctant spouse cannot prevent the divorce by refusing to sign the papers. In fact, it’s not a good idea at all to refuse to sign divorce papers.
Grounds for Divorce
New Jersey offers two types of divorce: no-fault and fault-based.
No-Fault Divorce
Your complaint should state the grounds for your divorce. Unspecified “irreconcilable differences” that have persisted for six months or more is enough, as is living apart for 18 months or more. The nature of your differences don’t matter as long as they are irreconcilable.
Fault-Based Divorce.
You can also pursue a fault-based divorce. Grounds for fault-based divorce include:
- Adultery
- Desertion
- Extreme cruelty
- Addiction
- Mental illness
- Imprisonment
- Deviant sexual conduct
Few people bother with this option, even when the grounds for it exist, because it tends to create unnecessary conflict. Why bother going to the trouble of proving adultery, for example, when “irreconcilable differences” are enough? Such a course of action could trigger a cycle of revenge and counter-revenge that nobody really wants.
Residency Requirements
At least one spouse must have lived in New Jersey for the 12 months immediately preceding the divorce. It doesn’t have to be you. It can be your spouse, even if they are unwilling to divorce.
Nevertheless, the residence must have been continuous.
Filing the Initial Divorce Complaint
You initiate a New Jersey divorce by filing a Complaint for Divorce with the Superior Court that has jurisdiction over your county. If you live in a major city, the court should be in town. Your complaint requires careful drafting, however, at least for the best results.
It should include information such as:
- The name of the county where you are filing for divorce
- The type of case you are filing (divorce)
- Identification information for both you and your spouse
- The date and location (county and state)
- Whether your marriage ceremony was civil or religious
- A statement confirming New Jersey residency that applies to at least one spouse
- Clearly state the grounds for the divorce
- Include information about any children from your marriage. You should include your children’s names, birthdates, and current living arrangements
- List your demands, such as alimony, child support, child custody, property division, and anything else you might want from the divorce.
- List your assets and liabilities, even if you have already listed them elsewhere
- Include a Certification of Verification and Non-Collusion: This document certifies that the facts in your complaint are true to the best of your knowledge and that your divorce filing is completely voluntary.
- Declare whether you have any other ongoing legal proceedings involving the children of your marriage.
This list is not complete; talk to your lawyer for more information. A more complete list of requirements may also be found here. There is a filing fee of $300, but you can apply for a waiver of this fee based on poverty.
Service of Process
Naturally, your spouse has a constitutional right to notice of divorce proceedings against them. You notify them through “service of process,” a legal procedure that ensures you have made your best efforts to notify them that you are filing for divorce.
The notification papers will also inform them of how to respond to your action, whether or not they agree to the divorce.
What Exactly Are the ‘Divorce Papers’ You Need To Serve on Your Spouse?
Divorce papers include the following documents:
- The official divorce complaint, as described above.
- The summons, which is an official notice to the defendant that a divorce has been filed against them.
- Confidential Litigant Information Sheet
- Certification of Verification and Non-Collusion
- Certification of Insurance Coverage
- Case Information Statement
Once the process server delivers all of these documents to the receiving spouse, the receiving spouse does not have to sign to make the service of process valid.
The process server themselves will sign an affidavit stating that they served the recipient spouse, and that is all that is necessary to render the service valid.
Methods of Service of Process
Below is a listing of the primary methods of service of process:
- The sheriff or a professional process server confronts your spouse in person and places the documents in their hands. This is the ideal way to serve process. But if your spouse opposes the divorce, they might try to avoid the sheriff or the process server.
- Certified Mail, return receipt requested. This provides proof of delivery even if your spouse refuses to sign for the documents.
- Alternative service: In extreme cases, the court may allow alternative methods. You’ll need strong evidence that the other spouse is evading service of process. Alternative service might include things like publication in a newspaper.
The facts and circumstances of your case will generally dictate the appropriate method.
Default Divorce
You can request a default divorce if your spouse fails to respond to the divorce papers within 35 days. This means that the judge grants you the divorce without the participation of your spouse.
To win a default divorce, you must prove that you have “served process” on your spouse. The judge might also require you to attend a hearing.
However, a default divorce doesn’t necessarily mean you get everything your way. The judge will consider basic fairness to your spouse and, above all, the best interests of any children of the marriage.
Except in extreme cases like domestic abuse, even a default divorce will allow the opposing spouse certain custody or visitation rights.
Your Parenting Plan
Even if you are seeking a default judgment, you must submit a proposed parenting plan that includes your demands for child custody and child support. Your parenting plan must also explain how it serves the best interests of the child or children of the marriage. The judge will consider all relevant factors before making a final decision.
Alimony
When it comes to alimony (if any, and there often isn’t), New Jersey courts make decisions based on several factors, including the length of the marriage, the standard of living during the marriage, and each spouse’s earning capacity.
Property Division
In New Jersey, property division is based on “equitable distribution,” not “community property.” This distinction usually doesn’t matter very much because the principle of equality governs the distribution of property even if your spouse does not participate.
However, this is not always true, so talk to your lawyer about it.
You Almost Certainly Need a Monmouth County Family and Divorce Lawyer
Divorces are difficult enough when they are consensual and amicable. However, if one spouse opposes the divorce, the situation can get messy quickly. Even if your spouse eventually responds, they will probably contest some of your preferred terms of divorce.
The best time to hire a family lawyer is immediately, to give them time to get up to speed on your case before things get even more contentious.
Contact an Experienced Monmouth County Divorce Attorney at The Law Office of Jennifer J. McCaskill, LLC for Legal Advice
To learn more and get the help you deserve, call our divorce & family law firm in Red Bank. NJ at (732) 747-1882 or contact us online today.
You can also visit our law firm at 157 Broad St #111, Red Bank, NJ 07701.
