The term "uncontested divorce", while subject to various meanings, generally refers to a situation wherein the parties have already come to a verbal or written agreement detailing the terms of their separation. The agreement may be the product of mediation, represented negotiation, or even direct dealings between the parties. In most cases, agreements are reached through a hybrid of mediation and represented negotiation, wherein the mediator serves as the neutral facilitator, but subject to the approval of the attorney advocate. The attorneys may or may not be physically present for mediation sessions, but are nonetheless substantially involved in the process.
The mediation sessions might begin prior to the filing of the divorce complaint, or sometime thereafter. In NJ, most divorce cases are referred to mandatory economic mediation if a case remains unresolved past a certain point in the litigation process. Many divorce cases are resolved at that juncture.
When a couple attends mediation on their own accord, prior to retaining attorneys, or hammer out an agreement on their own, it is absolutely imperative that each party consult with their own counsel to ensure that they are getting a fair deal. With the abundance of unverified information on the internet and cookie cutter “do it yourself” kits, many people wind up misinformed about their rights. In far too many cases, they find themselves regretful, broke, and emotionally defeated, with little to no chance of legally challenging the outcome of the divorce. As the saying goes, it is better to be pound wise and penny foolish.
When an agreement has been signed by the parties and properly reviewed by counsel, a proceeding known as an "uncontested hearing" will be scheduled before the assigned Judge. It is critical to be aware that the Judge makes no findings as to the fairness or adequacy of an agreement at an uncontested hearing. Rather, the Judge's main concern is whether the parties understand their divorce agreement and are entering into the same knowingly and voluntarily. The Judge will also question the Plaintiff as to the allegations posed in the Complaint. If there is a Counterclaim, the Defendant will be similarly questioned.
As can be suspected, where child or spousal support is involved, the entry of a final judgment of divorce is rarely the end of the parties' dealings. The ties that bind are continuing, leading to the possibility of additional litigation down the road. To that end, it is of the utmost importance that your divorce agreement be carefully and thoughtfully drafted so as to minimize the chance that you will be sitting in the same Courtroom only a few years, or even months, after the initial divorce.
Whether you have been married for five years or thirty-five, your matrimonial matter deserves the undivided attention of a qualified attorney certified to practice in the State of New Jersey.
The media frequently touts the benefits of mediation and collaborative law as a means of resolving divorce and other family disputes short of litigation. While these methods of alternate dispute resolution are indeed valuable, and frequently result in fair settlement packages at a reduced cost, they are not always appropriate or effective.
For instance, the ethical rules governing mediators prohibit mediation where a Final Restraining Order has been entered against a spouse. Even in cases where there is no such order, there might be such a power imbalance in a relationship that the integrity of the entire process is jeopardized. Some manipulative spouses view the mediation process as an opportunity to induce a quick, yet unfair, settlement under the guise of being the “good guy” for foregoing litigation. Certain tactics include creating a false sense of urgency about the divorce, inappropriately hanging “custody” over a primary caretaker’s head, and/or exploiting the informality of mediation as a means to conceal assets that would otherwise be disclosed through litigation. The presence of the parties’ private attorneys during mediation does not always remedy the situation, as one spouse may be extraordinarily stubborn, refusing to compromise on any one issue out of pride or ill will.
In these and other cases, pursuing alternative dispute resolution avenues might simply amount to a waste of time and money. Even worse, where collaborative law is utilized, only to eventually prove unsuccessful, both parties must start over with completely new attorneys, causing the re-creation of not only “the wheel”, but additional attorney’s fees.
The unfortunate truth is that sometimes divorce litigation is absolutely necessary, whether amounting to pendente lite motion practice or a full-blown trial.
Pendente lite motions are applications filed pending the divorce but before final judgment. Examples of issues implicated in these motions include support for a spouse and/or children who have been financially abandoned, temporary custody of minor children, a determination as to which party should get to reside in the marital residence, or even a counsel fee advance in order to “even the footing” between spouses with disparate incomes. These motions serve the dual goals of obtaining much needed relief and “setting the tone” for the pending proceedings, specifically, making your spouse fully aware that you will not be bullied and are emotionally ready to protect and enforce your rights if you must. Such pre-trial determinations also serve to facilitate a fair settlement down the road, as pendente lite orders often give a glimpse as to the Judge’s inclinations and what result might reasonably be expected at trial.
While only a small percentage of divorce cases are actually tried to conclusion due to time, expense, and the desire to avoid unnecessary discomfort and embarrassment, there are some cases where a trial may be unavoidable. These cases include not only significant bona fide disputes, but cases where, for example, a vengeful litigant is dead set on putting her spouse on the stand, or has been unwittingly promised the proverbial "moon and the stars" by her attorney if the matter proceeds to trial.
Whatever your circumstance, it is absolutely critical that you receive assistance from an attorney qualified to not only litigate your matter, but to prepare your case for proper presentation to the Court. This groundwork entails obtaining all of the relevant financial and other documentation to support your case, retaining expert witnesses, conducting depositions, drafting lines of questioning, organizing and selecting trial exhibits, and, most importantly, using all of the foregoing to artfully and persuasively relay "your story" to the Court.
Here at Stutzke Law, it is not our policy to adopt unreasonable positions or to litigate matters for the sake of it. However, we are more than prepared to aggressively litigate your interests when the circumstances call for it. Kindly contact us today to discuss your matter.
If there are minor children borne or adopted of the marriage, either party may request legal and/or primary residential custody of a child. A parent not seeking to exercise primary residential custody of the child or children might simply petition the Court for reasonable and liberal parenting time. Please contact our office to discuss the specific parameters of custody and parenting time based on New Jersey law.
The party seeking primary residential custody of any minor children of the marriage will also request that the Court award adequate support for said children. We can help you understand how these figures are calculated and ensure your children receive the support they are entitled to.
While nobody enters a marriage expecting it to end, a prenuptial or postnuptial agreement is a practical, proactive step to protect both parties' financial futures and provide ultimate peace of mind. These agreements are not about anticipating failure; rather, they are about fostering open communication regarding finances, assets, and mutual expectations before a crisis ever arises.
A Prenuptial Agreement is entered into prior to the marriage and dictates how assets, debts, and potential support will be handled in the event of a divorce or death. It is especially valuable for individuals with significant pre-marital assets, business owners, or those entering a second marriage with children from a previous relationship.
A Postnuptial Agreement functions similarly but is drafted and executed after the couple is already legally married. This is often utilized when there is a significant change in financial circumstances, such as a large inheritance, the creation of a new business venture, or as a tool to rebuild trust during marital difficulties.
In New Jersey, for these agreements to be enforceable, there must be full financial disclosure by both parties, and both individuals should be represented by their own independent legal counsel. The Courts will look closely to ensure the agreement was not signed under duress and was not unconscionable at the time it was executed.
At Stutzke Law, we approach the drafting and review of these sensitive documents with the utmost tact and precision. We ensure your rights are protected and your agreements are watertight, allowing you to focus on building your life together with security and clarity.
