A Litigant's Primer to Divorce Litigation
1. Reflect, Meditate, Pray: Whether you are a person of faith, describe yourself as a spiritual person or an agnostic, your marriage was contemplated before you entered it, even if you and your spouse eloped. The same thought process you used to think about entering your marriage is what you should use to determine the end of your marriage in divorce. Unless there is domestic violence or domestic abuse involved, which will be covered in a separate article, you need and in deed owe yourself time to think. While there is no set time limit to contemplate divorce, I recommend thinking about it for three of the four seasons.
2. Truly think about the kids: You and your spouse both love your child or children. You should not try to alienate your child or children from their other parent as part of the divorce case. You will scar them for life and ultimately damage her, his or their relationship with you. I trust that you know your goal should be that your child or children look at the pre-divorce family pictures and after-divorce multi-family pictures with the same feelings of comfort and joy.
3. Gather Your Resources: How much did your wedding cost? Did you have a budget? What resources did you use to pay for your wedding? Those answers are instructive when thinking about divorce because most people planned in advance for their wedding. Moreover, many people spend extravagantly on their weddings but want to spend little or nothing on their divorce or worse do it themselves when they have much more to lose if they do not protect their rights to child custody, alimony, equitable distribution and other equally important interests. A good portion of my divorce practice is fixing what client’s have done to themselves as Pro Se or self-represented litigants in their divorce. Motions for Reconsideration or Appeals are sometimes necessary but ultra-expensive, and super time-sensitive. It is hard to get back what you unwittingly give away as a Pro Se or self-represented litigant. I hope to discourage you from being penny-wise and pound-foolish. To that end, I strongly recommend that you create a multi phase budget to fund your litigation with an attorney.
Divorce litigation is expensive. It is something you are choosing to do or are being compelled to do because you do not agree with your spouse. Therefore you need a plan to fund it. You do not ask the department store for a payment plan, you charge it on a bank or store credit card if you do not have the cash on hand. You have time to plan, to fund your divorce, so do it. I recommend that you spend your time and money: wisely, intelligently and most of all strategically.
i. A divorce consultation budget, you should select an attorney that you are comfortable with, the two of you will be working very closely together. I recommend you consult with at least 3 attorneys. How do you choose? As much as the attorney is providing you with insight on your specific problem, you too are interviewing that attorney. Ask questions and listen carefully to the answers. Use logic, educate yourself, make an informed decision, but ultimately, I say go with your gut; this decision is more a feeling than a science.
ii. A divorce litigation budget: this is your biggest expense, potential clients always ask me how much a case will cost, I have never been able to estimate, there are too many unknown variables. Known costs: divorce retainer fee, incremental fee, court costs, each attorney you consult with should be able to answer these questions directly. Variable costs are: expert fees, deposition costs, mail costs, copying costs, real estate and/or art appraisal fees, etc., just to name some of the costs you may need to pay. It all depends on how much you or your spouse want to litigate.
iii. A divorce funding source budget: your salary, your credit cards, your savings, your family and friends are all potential sources. While the Judge may order your spouse to provide you with funds for your divorce, if you are under employed or unemployed, that is a motion, which has to be made which means it has to be funded first and won second. You need to count what your friends and family can contribute or understand that you may be funding this divorce litigation alone with your salary, savings, credit cards or via a Court Order, assuming the Judge gives you fees. I am not saying have all the money you need for your divorce at once, since you do not know the total cost until it ends, but you do need to understand where you are going to obtain your funding for your divorce litigation when the time comes to tap that resource. I think it is unwise and unrealistic to believe you can start a divorce case with no money.
4. Pre-filing: You have decided to move forward with your divorce. On your own you sketched out what you want. If you have children, you have thought about and have ideas on custody and parenting time. You have gathered important documents (deeds, stock portfolios, passports, birth certificates, marriage certificate, etc). You have met with and hired an attorney. You have your funding sources lined up and can met your retainer requirements and are providing that attorney with all the information needed to file the complaint.
5. Post-Complaint: Welcome to divorce litigation. Your divorce attorney has filed, your spouse still has time to answer. At this point you can begin to file motions for funds, parenting time agreements for child custody (if you do not still live together), freeze assets from dissipation, sell assets or property to fund the divorce litigation, file a lis pendens to prevent the sale of property, whatever is necessary. Your soon to be ex-spouse will answer and may make counter-claim and file motions as well. The Judge has set a schedule for discovery. Documents and records are demanded from each side, admissions requested, experts hired, depositions taken. Letters are going back and forth. Due to the volume of documents going back and forth in a divorce case, I typically have my staff e-mail my clients everything in .pdf format so their divorce file is as complete as mine. This policy is part of our Green Initiative and has the added benefit of saving clients costs for making paper copies and better focuses divorce funding resources where they are needed.
6. Pre-Trial: You have all the information you are going to receive. This is the best time to come to an divorce settlement agreement, this is the phase where emotions are the most in control and logic can prevail. 95% of all cases settle, only 5% or less go to the end of trial. Why shouldn't your divorce case settle? Listen to your divorce attorney, make sure that you have presented your best offer to your soon to be ex-spouse because in the next phase you will have what you want, a clear conscience for the battle to come.
7. Divorce Trial: Almost all efforts to settle have been exhausted. Your divorce attorney has prepared a trial notebook, made copies for the court and the other attorney. Now it depends on the Judge, he or she will determine when your divorce trial begins, how many hours you have on a particular day. You should remove from thought TV show or Hollywood movie divorce trails, or even continuous trials; your divorce trial may take place over months not days or weeks. The Court System has time tables that push you to this point, but because of back log and your Judge's particular schedule, no one can predict when you divorce case will begin, end or what the Judge will ultimately decide. My recommendation, only go to trial in a divorce if you have to, and sometimes you must because the other side is unreasonable. Hopefully, your divorce attorney is able to obtain for you the result you really want but at the very least you should be able to tell your attorney she or he fought for you and you truly appreciate the effort made on your behalf. You must understand that divorce is rarely winner take all, it is more like a split between the range of 60%~40%, which why if you settle you can tweak it to 50%~50%.
I always tell my clients to please remember, “The date of the final judgment of divorce is the End of the End and the Beginning of the Beginning”. What does that mean, well, the final judgment of divorce’s date is not only the End of the End of your marriage but it is also and more importantly the Beginning of the Beginning of the rest of your Life.
©Lesley Renee Adams, Attorney at Law
Domestic Violence Representation
What you don't know can hurt you, whether you are the Plaintiff or Defendant you have a very short time, as short as 10 days to protect your rights domestic violence or domestic abuse cases.
A Domestic Violence or Domestic Abuse Complaint usually results in a Temporary Restraining Order [TRO] which is an Ex Parte Application to the Municipal or Family Court. Ex Parte means that the other side did not receive notice or have an opportunity to have the Court hear their side of the domestic abuse incident. The relief, obtaining a TRO, is deemed emergent and therefore because the restraints are temporary, less than ten days before the defendant receives a hearing, it is deemed appropriate, the risk of harm in a domestic violence or domestic abuse case out weighs the violation of the Defendant's due process rights. It is the easiest way to get child custody in New Jersey in FD (custody) or FM (divorce) cases (First Strike). Is the alleged act of domestic violence or domestic abuse is claimed just before or just after FD or FM is filed? Did the alleged act of domestic violence or domestic abuse have anything to do with a child, was a child present, witness or additional victim of domestic violence or domestic abuse. Is a Risk Assessment needed?
As Counsel of Alleged Victim: Domestic Violence is quasi-criminal. As Plaintiff's attorney you must know the Elements of the Offense Charged. Those elements are defined by the criminal statutes, the difference is that the burden of proof is much lower in Family Court, it is not "beyond a reasonable doubt", it is "by a preponderance of the evidence". If the Plaintiff's attorney does not prove each element of the offense, then you, the Plaintiff will not meet your burden of proof in your domestic abuse case and there will be no Final Restraining Order [FRO]. The standard of proof “by a preponderance of the evidence” is often defined as more likely than not or the 51%~52% range. By contrast, beyond a reasonable doubt is defined as 99%. If an FRO is granted in a domestic violence case, the Plaintiff is entitled to reasonable attorney fees N.J.S.A. 2C:25-29b4.
As Counsel of Alleged Aggressor: Defendant's attorney should determine if you were advised of your right to counsel? This is important if you are charged criminally at the Municipal or State level for a domestic violence or domestic abuse case in addition to having a TRO issued. In that event you will have to defend yourself in two separate court systems for the same act of domestic violence or domestic abuse. If the answer is no, and the domestic violence offense has a penalty which is a consequence of magnitude then you may have to seek the issuance of an interlocutory appeal. State v. Ashford 374 N.J.Super 332. What is a consequence of magnitude? Imprisonment on Municipal Court offense, loss of driver’s license, loss of employment, immigration issues, travel restrictions, etc.? At the State level, you could be charged with a 4th ~ 1st degree offense(s). In that event, you, as the defendant in a multi jurisdiction domestic violence or domestic abuse case can either hire two attorneys, one for the Family Court matter and the other for the Criminal Court matter or hire an attorney that can handle both. Remember, unlike a criminal case where you are constitutionally entitled to an attorney, i.e. a public defender, you are not entitled to an attorney in Family Court where the domestic violence case may also be heard. Are you, the defendant in a domestic violence or domestic abuse case, in the military or a member of law enforcement? the use of your duty weapon and the like are specifically permitted with some restrictions. See 2C:25-29b. If you are the Defendant and the FRO is not granted in your domestic abuse case the Plaintiff does not receive counsel fees.
©Lesley Renee Adams, Attorney at Law
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