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Uncontested Divorce versus Contested Divorce

There is a big difference between a Contested and Uncontested Divorce.  A Contested Divorce is when the parties are not in agreement with the terms of the Divorce, whereas an Uncontested Divorce, the parties are either in agreement or one party is not contesting the terms of the Divorce, which were set forth by the Plaintiff (the person filing the Divorce).  Furthermore, whether a Divorce will be considered contested or uncontested is not whether one of the parties refuses the Divorce itself, it is whether the parties can agree to the terms of the Divorce.  With the recent changes in New Jersey Divorce laws, there is no reason for the Plaintiff (the person who files for the Divorce) to show cause. So it unnecessary to accuse the Defendant of adultery, physical or mental abuse, fraud, etc. in the Complaint. The only fact that must be pleaded (stated) is incompatibility between the parties for at least six months prior to the filing of the Complaint for Divorce.  Divorces are initiated when the Plaintiff files a Complaint.  An attorney can assist you in filing this Complaint.  This Complaint along with a Summons is then served on the Defendant as per the laws of the State of New Jersey.  If the Defendant (spouse) wants to contest any issue in this Divorce, then they have the opportunity to file an Answer i.e. a response to the complaint.   This Answer must be served within thirty-five (35) days of receiving the Complaint.  An Attorney can also assist you in filing an Answer.  After both spouses are officially made a part of this legal matter, then the parties can begin to exchange documentation and demands and hopefully come to an agreement on the terms of Divorce without much litigation.

On the other hand, a large part of New Jersey Divorces are uncontested and are granted without the Defendant filing an Answer.  Defendants who fail to file an Answer to a Complaint for Divorce or any Complaint in Civil Law are considered in Default.  However, as in other Civil Law matters, a party may, with the assistance of an attorney, request that the court vacate (reopen) this Divorce matter, permitting the Defendant to file an Answer.  Additionally, though a party may be granted a legal Divorce, outstanding issues, such as child support and property issues, can be reopened after a short period of time.  But this can only happen if a party has a meritorious reason for their delay in filing an Answer and important issues to contest, i.e. property and/or children related issues. Here, should the court reopen the Property Settlement, the Defendant will be permitted to file an Answer and present their case to the court.  Again, legal counsel would be recommended in order to attempt to reopen a granted Divorce.

The usual initial steps in a Divorce process;

  • Filing of a Complaint for Divorce by a Plaintiff;
  • Serving Complaint and Summon on the Defendant as per the laws of the State of New Jersey;
  • Either a Defendant defaults (fails to Answer Complaint) or files an Answer;
  • A Plaintiff, whose Complaint is not answered, may serve a Notice of Final Judgment of Divorce and Notice of Property Settlement Agreement upon a Defendant, and request a Judgment of Divorce, based upon the terms that he or she placed in these documents; and/or
  • A Defendant who files an Answer has the right to discuss and litigate all of the terms of the Divorce;

Some people after being served with a Complaint, see no immediate reason for filing an Answer.  They do not realize their rights or the rights of their children can be detrimentally affected.  However, many issues can arise. Even though one’s spouse does not seem to have property at the time of the Divorce or you believe that you will settle your affairs with your future ex-spouse by a handshake or through an informal process, at a later date you may be in for a rude awakening.  A Complaint for Divorce which goes unanswered and a Default which goes un-vacated even after receiving a Property Settlement Notice (a notice from the Plaintiff, which details the Divorce issues, i.e. child support, spousal support) can seriously harm a Defendant’s long term property and children-related rights.  Your rights to your share of your spouse’s retirement and/or social security payments may be terminated as well as your children’s rights to an insurance policy on your spouse’s life.

Just some of the issues that exist in a Contested Divorce:

  • Child support, the parent with custody receiving support, based upon income. However if a child is emancipated, no support;

 

  • Child custody and visitation, which parent will have custody of any minor children, with a difference between legal and residential custody;

 

  • Spousal support, one spouse’s payment to the other, based upon duration of the marriage and the differences in income and income potential; and

 

  • Equitable Distribution of Property, dividing up all matrimonial property, whether real property (homes) or personal property (cars, furniture, etc.)

 

Whether your Divorce is Contested or Uncontested or if you need assistance in determining whether there are contested issues, legal counsel can protect your rights throughout this process.

 

DISCLAIMER – This discussion is only for informative purposes only and does not constitute a legal opinion.  Nor does it create a legal relationship with its author.  Please speak with an attorney and an accountant before you make any decisions in regard to a divorce.

Please contact my offices to discuss your specific case.  I provide free initial consultations.

Article by:  Raymond C. Osterbye, Esq.

Tel: (732) 737-9929

Email:  Rosterbye@legalservicecenter.org

 



Raymond is experienced in a host of different areas, including Immigration, Criminal, Divorce & Family Law, Wills & Estate, Incorporating your business as well as advising small businesses with their tax and investment choices.
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