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HOW TO FILE FOR DIVORCE IN NEW JERSEY
- 1 HOW TO FILE FOR DIVORCE IN NEW JERSEY
- 1.1 CAN I GET DIVORCED IN NEW JERSEY?
- 1.2 RECOMMENDATION TO HIRE ATTORNEY
- 1.3 DRAFTING YOUR COMPLAINT FOR DIVORCE
- 1.4 CAUSES OF ACTION FOR DIVORCE
- 1.5 REQUESTS FOR RELIEF
- 1.6 ANSWER & COUNTERCLAIM
- 1.7 EFFECT OF FAILURE TO DENY ALLEGATIONS IN COMPLAINT
- 1.8 DEADLINES
- 1.9 ENTIRE CONTROVERSY DOCTRINE
- 1.10 TECHNICAL REQUIREMENTS
- 1.11 REQUIRED ATTACHMENTS
- 1.12 FILING YOUR COMPLAINT WITH THE COURT
- 1.13 SERVING YOUR COMPLAINT FOR DIVORCE
- 1.14 FILING PROOF OF SERVICE WITH THE COURT
CAN I GET DIVORCED IN NEW JERSEY?
The New Jersey statute that governs jurisdiction in divorce matters provides as follows:
“Jurisdiction in actions for divorce, either absolute or from bed and board, and in actions for dissolution of a civil union or legal separation from a partner in a civil union couple may be acquired when process is served upon the defendant as prescribed by the rules of the Supreme Court, and
When, at the time the cause of action arose, either party was a bona fide resident of this State, and has continued so to be down to the time of the commencement of the action; except that no action for absolute divorce or dissolution of a civil union shall be commenced for any cause other than adultery, unless one of the parties has been for the 1 year next preceding the commencement of the action a bona fide resident of this State; or
When, since the cause of action arose, either party has become, and for at least 1 year next preceding the commencement of the action has continued to be, a bona fide resident of this State.” [N.J.S.A. 2A:34-10.]
Therefore, assuming your Complaint for Divorce has been properly served on your spouse (discussed below), New Jersey imposes a one-year residency requirement for all grounds for divorce except adultery. Only one spouse, not both, needs to meet that requirement for either spouse to file for divorce in New Jersey.
When the ground for divorce is extreme cruelty, “no complaint for divorce shall be filed until after [three] months from the date of the last act of cruelty complained of in the complaint.” [N.J.S.A. 2A:34-2(c).]
When the ground for divorce is adultery, there is no residency requirement; instead, one party or the other has to have been a bona fide resident of the State of New Jersey when the adultery occurred and continued to be a bona fide resident through the filing of the Complaint for Divorce. [N.J.S.A. 2A:34-10.]
In the jurisdictional context, “the concept of bona fide resident is equated with domiciliary.” [Tatham v. Tatham, 429 N.J. Super. 502, 508 (App. Div. 2013).] A party’s domicile is “established by physical presence coupled with the concomitant unqualified intention to remain permanently and indefinitely.” [Tatham v. Tatham, 429 N.J. Super. 502, 508 (App. Div. 2013).]
Notably, there are two kinds of jurisdiction relevant here: (1) personal jurisdiction and (2) subject matter jurisdiction. (A third kind of jurisdiction, called in rem jurisdiction, which refers to jurisdiction over certain property, is relevant but not discussed here.)
Personal jurisdiction is the Court’s jurisdiction over a particular person, and it is generally obtained by proper service of the Complaint for Divorce. [R. 4:4-4(a).] Improper service of the Complaint may be waived. [R. 4:4-6.]
Subject matter jurisdiction is the Court’s jurisdiction over a particular dispute (e.g., a divorce). Lack of subject matter jurisdiction cannot be waived, and the argument may be raised at any time, even on appeal. [Macysyn v. Hensler, 329 N.J. Super. 476, 481 (App. Div. 2000).]
RECOMMENDATION TO HIRE ATTORNEY
There are two basic reasons I make that recommendation: (1) the Doctrine of Res Judicata; and (2) the Entire Controversy Doctrine.
First, “[t]he term ‘res judicata’ refers broadly to the common-law doctrine barring relitigation of claims or issues that have already been adjudicated.” [Velasquez v. Franz, 123 N.J. 498, 505 (1991).] What this means is that once the Court has decided an issue between you and your spouse, it typically will not go back and decide the issue again. In general, you’re required to get it right the first time around.
Second, the entire controversy doctrine requires that all claims between parties “arising out of or relating to the same transactional circumstances … be joined in a single action.” [Brown v. Brown, 208 N.J. Super. 372, 377-78 (App. Div. 1986).] The entire controversy doctrine bars a subsequent action when a prior action based on the same transactional facts has been “tried to judgment or settled.” [Kaselaan & D’Angelo Assocs., Inc. v. Soffian, 290 N.J. Super. 293, 299 (App. Div. 1996).] Because of the Entire Controversy Doctrine, it is incredibly important to bring all of your possible claims against the opposing party at one time. Failing to bring a claim (even if you did not know that claim existed because you’re unfamiliar with the law) may result in you being forever barred from raising that claim later on.
Hiring a skilled and aggressive attorney is critical to protecting and preserving your rights and the rights of your children. I have built this website to help residents of New Jersey begin to understand the laws by which they are expected to abide, but I am also willing to sit down with you free of charge to explore the unique facts of your case, explain the law, and address the likely timeline, costs, and range of possible outcomes.
DRAFTING YOUR COMPLAINT FOR DIVORCE
The pleadings filed in a typical divorce proceeding include a Complaint for Divorce, an Answer and Counterclaim, and an Answer to Counterclaim. [See R. 4:5-1(a).]
Along with the other technical necessities, there are two basic requirements in your Complaint for Divorce: (1) facts that, if accepted as true, would entitle you to relief from the Court; and (2) a demand for the relief you are seeking. “Except as may be more specifically provided by these rules in respect of specific actions, a pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim or third-party claim, shall contain a statement of the facts on which the claim is based, showing that the pleader is entitled to relief, and a demand for judgment for the relief to which the pleader claims entitlement.” [R. 4:5-2.]
CAUSES OF ACTION FOR DIVORCE
- Willful and continued desertion;
- Extreme cruelty;
- Voluntary addiction/habitual drunkenness;
- Institutionalization for mental illness;
- Deviant sexual conduct; and
- Irreconcilable differences. [N.J.S.A. 2A:34-2.]
The most common cause of action for divorce, by a very wide margin, is irreconcilable differences.
To establish irreconcilable differences, you must prove the existence of “[i]rreconcilable differences which have caused the breakdown of the marriage for a period of six months and which make it appear that the marriage should be dissolved and that there is no reasonable prospect of reconciliation.” [N.J.S.A. 2A:34-2.]
In the vast majority of divorces, however, there is no real dispute as to whether irreconcilable differences have occurred. If one spouse or the other wants a divorce, the Court will grant that divorce with little inquiry.
“It is the policy of this State to terminate dead marriages.” [Albrandt v. Albrandt, 129 N.J. Super. 235, 237 (Ch. Div. 1974).]
REQUESTS FOR RELIEF
- Alimony/spousal support;
- Division of real property;
- Division of personal property;
- Division of debts;
- Name change;
- Child custody;
- Parenting time/visitation;
- Child support;
- Relief related to life insurance;
- Relief related to health insurance; and
- Money damages for personal injury.
ANSWER & COUNTERCLAIM
“A responsive pleading shall set forth specifically and separately a statement of facts constituting an avoidance or affirmative defense including but not limited to accord and satisfaction, arbitration and award, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, frustration of purpose, illegality, impossibility of performance, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, and waiver.” [R. 4:5-4.]
“A counterclaim may state any family cause of action, and any other cause or causes of action which exist at the time of service of the counterclaim. A counterclaim not stated in an answer may be filed by leave of the court at any time prior to final judgment. Failure to counterclaim for divorce, dissolution of civil union, termination of domestic partnership, or nullity shall not bar such cause of action. In any action involving the welfare or status of a child the counterclaim shall include the child’s name, address, date of birth and a statement of where and with whom the child resides.” [R. 5:4-2(d).]
EFFECT OF FAILURE TO DENY ALLEGATIONS IN COMPLAINT
If he or she does not respond within 35 days, you can request the entry of default. [R. 4:43-1.]
If he or she does respond, you will then have 35 days within which to serve your answer to that response. [R. 4:6-1(a).]
Typically, no further pleadings are permitted or appropriate in a divorce proceeding.
ENTIRE CONTROVERSY DOCTRINE
The Entire Controversy Doctrine is important because spouses frequently have personal injury claims based on abuse during the marriage. The New Jersey Supreme Court has indicated that such claims should be joined in the divorce proceeding. [Tevis v. Tevis, 79 N.J. 422, 434 (1979).]
Failure to do so may result in the claim being waived and forever lost under the Entire Controversy Doctrine. [R. 4:30A.]
There are also many technical requirements about the form of your Complaint. For example, a Complaint for Divorce must contain certain basic information about the parties:
“Every complaint in a family part action, in addition to the special requirements prescribed by these rules for specific family actions, shall also include a statement of the essential facts constituting the basis of the relief sought, the statute or statutes, if any, relied on by the plaintiff, the street address or, if none, the post office address of each party, or a statement that such address is not known; a statement of any previous family actions between the parties; and, if not otherwise stated, the facts upon which venue is based.” [R. 5:4-2(a).]
Further, the Court Rules set specifics requirements regarding the caption at the top of your Complaint: “Every paper to be filed shall contain a caption setting forth the name, division and part thereof, if any, of the court, the county in which the venue in a Superior Court action is laid, the title of the action, the docket number except in the case of a complaint, the designation ‘Civil Action’ or ‘Criminal Action’, as appropriate, and a designation such as ‘complaint’, ‘order’, or the like. In a complaint in a civil action, the title of the action shall include the names of all the parties, but in other papers it need state only the name of the first party on each side with an appropriate indication that there are other parties. Except as otherwise provided by R. 5:4-2(a), the first pleading of any party shall state the party’s residence address, or, if not a natural person, the address of its principal place of business.” [R. 1:4-1(a).]
The Court Rules also require a blank space at the top of your Complaint: “At the top of the first page of each paper filed, a blank space of approximately 3 inches shall be reserved for notations of receipt and filing by the clerk. Above the caption at the left-hand margin of the first sheet of every paper to be filed there shall be printed or typed the name and the New Jersey attorney identification number of the attorney filing the paper, office address and telephone number or, if a party is appearing pro se, the name of such party, residence address and telephone number. No paper shall bear an attorney’s post office box number in lieu of a street address. An attorney or pro se party shall advise the court and all other parties of a change of address or telephone number if such occurs during the pendency of an action.” [R. 1:4-1(b).]
The factual statements in a Complaint must be set forth in separate numbered paragraphs: “Allegations of claim or defense in a civil action shall be made in numbered paragraphs, each limited as far as practicable to a single set of circumstances. A paragraph may be referred to by number in the same or succeeding pleadings. Each claim founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a separate count or defense whenever a separation facilitates the clear presentation of the matter.” [R. 1:4-2.]
Pleadings, including your Complaint for Divorce, must be signed and dated: “Pleadings (other than indictments), motions and briefs shall be signed by the attorney of record or the attorney’s associate or by a pro se party. Signatures of a firm may be typed, followed by the signature of an attorney of the firm. Signatures on any duplicate original or carbon copy required to be filed may be typed. Every paper to be filed shall bear the date on which it was signed.” [R. 1:4-5.]
You also need to use standard-sized paper and 12-point type: “Except as otherwise provided by R. 2:6-10, pleadings and other papers filed with the court, including letter briefs and memoranda but excluding preprinted legal forms and documentary exhibits, shall be prepared on letter size (approximately 8.5 x 11 inches) paper of standard weight and quality for copy paper and shall be double spaced with no smaller than 10-pitch or 12-point type. Both sides of the paper may be used and recycled paper should be used, provided legibility is maintained.” [R. 1:4-9.]
When drafting an affidavit, the factual statements should be written in the first person and divided into separate numbered paragraphs: (“Every affidavit shall run in the first person and be divided into numbered paragraphs as in pleadings. The caption shall include a designation of the particular proceeding the affidavit supports or opposes and the original date, if any, fixed for hearing.” [R. 1:4-4(a).]
The Court Rules generally permit the filing of a Certification instead of an Affidavit: “In lieu of the affidavit, oath, or verification required by these rules, the affiant may submit the following certification, which shall be dated and immediately precede the affiant’s signature: ‘I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment.’” [R. 1:4-4(b).]
Affidavits and Certifications need to be signed: “Every affidavit or certification shall be filed with an original signature, except that a copy of an affidavit or certification may be filed instead, provided that the affiant signs a document that is sent by facsimile or in Portable Document Format (PDF), or similar format, by the affiant and provided that the attorney or party filing the copy of the affidavit or certification files the original document if requested by the court or a party.” [R. 1:4-4(c).]
- Certification of Verification and Non-collusion;
- Affidavit or Certification of Insurance Coverage;
- Confidential Litigant Information Sheet;
- Affidavit or Certification of Notification of Complementary Dispute Resolution Alternatives.
- Notice of Other Actions and Potentially Liable Persons; and
- Designation of Trial Counsel (optional).
Affidavit of Verification and Non-Collusion: “There shall be annexed to every complaint or counterclaim for divorce, dissolution of civil union, termination of domestic partnership, or nullity an oath or affirmation by the plaintiff or counterclaimant that the allegations of the complaint or counterclaim are true to the best of the party’s knowledge, information and belief, and that the pleading is made in truth and good faith and without collusion for the causes set forth therein.” [R. 5:4-2(c).]
Affidavit or Certification of Insurance Coverage: “The first pleading of each party shall have annexed thereto an affidavit listing all known insurance coverage of the parties and their minor children, including but not limited to life, health, automobile, and homeowner’s insurance. The affidavit shall specify the name of the insurance company, the policy number, the named insured and, if applicable, other persons covered by the policy; a description of the coverage including the policy term, if applicable; and in the case of life insurance, an identification of the named beneficiaries. The affidavit shall also specify whether any insurance coverage was canceled or modified within the ninety days preceding its date and, if so, a description of the canceled insurance coverage. Insurance coverage identified in the affidavit shall be maintained pending further order of the court. If, however, the only relief sought is dissolution of the marriage or civil union, or a termination of a domestic partnership, or if a settlement agreement addressing insurance coverage has already been reached, the parties shall annex to their pleadings, in lieu of the required insurance affidavit, an affidavit so stating. Nevertheless, if a responding party seeks financial relief, the responding party shall annex an insurance-coverage affidavit to the responsive pleading and the adverse party shall serve and file an insurance-coverage affidavit within 20 days after service of the responsive pleading. A certification in lieu of affidavit may be filed.” [R. 5:4-2(f).]
Confidential Litigant Information Sheet: “All pleadings of each party to any proceeding involving alimony, maintenance, child support, custody, parenting time, visitation or paternity shall be accompanied by a completed Confidential Litigant Information Sheet in the form prescribed by the Administrative Director of the Courts. The form shall be provided at the time of the filing of any pleading but shall not be affixed to the pleadings. The information contained in the Confidential Litigant Information Sheet shall be maintained as confidential and shall be used for the sole purposes of establishing, modifying, and enforcing orders. The Administrative Office of the Courts shall develop and implement procedures to maintain the Confidential Litigant Information Sheet as a confidential document rather than a public record. The Confidential Litigant Information Sheet shall contain a certification consistent with R. 1:4-4(b). No copy thereof shall be served on any opposing party.” [R. 5:4-2(g).]
Affidavit or Certification of Notification of Complementary Dispute Resolution Alternatives: “The first pleading of each party shall have annexed thereto an affidavit or certification in the form prescribed in Appendix XXVII-A or XXVII-B of these rules that the litigant has been informed of the availability of complementary dispute resolution (“CDR”) alternatives to conventional litigation, including but not limited to mediation, arbitration, and collaborative law (New Jersey Family Collaborative Law Act, N.J.S.A. 2A:23D-1 through -18), and that the litigant has received descriptive material regarding such CDR alternatives.” [R. 5:4-2(h).]
Notice of Other Actions and Potentially Liable Persons: Each party shall include with the first pleading a certification as to whether the matter in controversy is the subject of any other action pending in any court or of a pending arbitration proceeding, or whether any other action or arbitration proceeding is contemplated; and, if so, the certification shall identify such actions and all parties thereto. Further, each party shall disclose in the certification the names of any non-party who should be joined in the action pursuant to R. 4:28 or who is subject to joinder pursuant to R. 4:29-1(b) because of potential liability to any party on the basis of the same transactional facts. Each party shall have a continuing obligation during the course of the litigation to file and serve on all other parties and with the court an amended certification if there is a change in the facts stated in the original certification. The court may require notice of the action to be given to any non-party whose name is disclosed in accordance with this rule or may compel joinder pursuant to R. 4:29-1(b). If a party fails to comply with its obligations under this rule, the court may impose an appropriate sanction including dismissal of a successive action against a party whose existence was not disclosed or the imposition on the noncomplying party of litigation expenses that could have been avoided by compliance with this rule. A successive action shall not, however, be dismissed for failure of compliance with this rule unless the failure of compliance was inexcusable and the right of the undisclosed party to defend the successive action has been substantially prejudiced by not having been identified in the prior action. [R. 4:5-1(b)(2).]
Designation of Trial Counsel: Designation of trial counsel may be made in the party’s first pleading. If trial counsel is not designated in the pleading, designation shall be made as required in R. 4:25-4. [R. 4:5-1(c).]
FILING YOUR COMPLAINT WITH THE COURT
There is one Superior Court in each County of New Jersey.
The proper County’s Superior Court in which to file your Complaint is determined by the Rules of Court in the following manner: “[V]enue in actions for divorce … shall be laid in the county in which plaintiff was domiciled when the cause of action arose, or if plaintiff was not then domiciled in this State, then in the county in which defendant was domiciled when the cause of action arose; or if neither party was domiciled in this State when the cause of action arose, then in the county in which the plaintiff is domiciled when the action is commenced, or if plaintiff is not domiciled in this State, then in the county where defendant is domiciled when service of process is made.“ [R. 5:2-1(c).] [R. 5:7-1.]
You must also pay the required fees to the Court. The fees charged by the Court for various filings are currently set as follows:
- Complaint for Divorce – $300.00;
- Parent Education Registration (for divorces involving custody) – $25.00;
- First Responsive Pleading (e.g., Answer & Counterclaim) – $175.00;
- Motion in Divorce Proceeding – $50.00;
- Order to Show Cause in Divorce Proceeding- $50.00;
- Writ of Execution – $5.00;
- Warrant of Satisfaction – $5.00; and
- Application for Child Support Services – $6.00. [R. 1:43.]
You should file your Complaint with the Family Division in the County of venue. You should call in advance to confirm the address and to ensure you have included all necessary forms and payment.
SERVING YOUR COMPLAINT FOR DIVORCE
When served on your spouse, the Complaint should be accompanied by a Summons. “If a summons is not issued within 15 days from the date of the Track Assignment Notice, the action may be dismissed[.]” [R. 4:4-1.] The summons should be in the form prescribed by Appendix XII-A to the Rules of Court. [R. 4:4-2.] The Summons form is available here: [Appendix XII-A.]
The Summons and Complaint may be served “by the sheriff, or by a person specially appointed by the court for that purpose, or by plaintiff’s attorney or the attorney’s agent, or by any other competent adult not having a direct interest in the litigation.” [R. 4:4-3(a).]
The Rules can be complex, and unless the Complaint is properly served, the Court lacks jurisdiction to hear your divorce and any judgment resulting from an improperly served Complaint may be set aside as void: “The requirements of the rules with respect to service of process go to the jurisdiction of the court and must be strictly complied with. Any defects … are fatal and leave the court without jurisdiction and its judgment void.” [Driscoll v. Burlington-Bristol Bridge Co., 8 N.J. 433, 493 (1952).]
“The primary method of obtaining in personam jurisdiction over a defendant in this State is by causing the summons and complaint to be personally served within this State pursuant to R. 4:4-3, as follows: (1) Upon [your spouse], by delivering a copy of the summons and complaint to the individual personally, or by leaving a copy thereof at the individual’s dwelling place or usual place of abode with a competent member of the household of the age of 14 or over then residing therein, or by delivering a copy thereof to a person authorized by appointment or by law to receive service of process on the individual’s behalf[.]” [R. 4:4-4(a).]
If you can accomplish personal service within the State of New Jersey, you can generally assume that the Court has properly acquired jurisdiction over the divorce proceeding. It is only when personal service within the State of New Jersey is not possible that acquiring jurisdiction becomes more complex. The Court may permit alternative methods of serving the Complaint if personal service within the State of New Jersey is not possible, including but not necessarily limited to: personal service in another state, personal service outside the United States, service by mail, and service by publication. [R. 4:4-4(b); R. 4:4-5.]
The contents of the affidavit must be as follows: “The inquiry required by this rule shall be made by the plaintiff, plaintiff’s attorney actually entrusted with the conduct of the action, or by the agent of the attorney; it shall be made of any person who the inquirer has reason to believe possesses knowledge or information as to the defendant’s residence or address or the matter inquired of; the inquiry shall be undertaken in person or by letter enclosing sufficient postage for the return of an answer; and the inquirer shall state that an action has been or is about to be commenced against the person inquired for, and that the object of the inquiry is to give notice of the action in order that the person may appear and defend it. The affidavit of inquiry shall be made by the inquirer fully specifying the inquiry made, of what persons and in what manner, so that by the facts stated therein it may appear that diligent inquiry has been made for the purpose of effecting actual notice.” [R. 4:4-5(b).]
FILING PROOF OF SERVICE WITH THE COURT
“The person serving the process shall make proof of service thereof on the original process and on the copy. Proof of service shall be promptly filed with the court within the time during which the person served must respond thereto either by the person making service or by the party on whose behalf service is made. The proof of service, which shall be in a form prescribed by the Administrative Director of the Courts, shall state the name of the person served and the place, mode and date of service, and a copy thereof shall be forthwith furnished plaintiff’s attorney by the person serving process. If service is made upon a member of the household pursuant to R. 4:4-4 that person’s name shall be stated in the proof or, if such name cannot be ascertained, the proof shall contain a description of the person upon whom service was made. If service is made by a person other than a sheriff or a court appointee, proof of service shall be by similar affidavit which shall include the facts of the affiant’s diligent inquiry regarding defendant’s place of abode, business or employment. If service is made by mail, the party making service shall make proof thereof by affidavit which shall also include the facts of the failure to effect personal service and the facts of the affiant’s diligent inquiry to determine defendant’s place of abode, business or employment. With the proof shall be filed the affidavit or affidavits of inquiry, if any, required by R. 4:4-4 and R. 4:4-5. Where service is made by registered or certified mail and simultaneously by regular mail, the return receipt card, or the printout of the electronic confirmation of delivery, which shall include an image of the recipient’s signature, provided by the U.S. Postal Service, or the unclaimed registered or certified mail shall be filed as part of the proof. A party making service by registered or certified mail and simultaneously by regular mail may file a photocopy of the return receipt card in lieu of the original return receipt card as the proof of service but only if the original is unavailable. Failure to make proof of service does not affect the validity of service.” [R. 4:4-7.]
Andrew M. Shaw, Esq. is the author of this New Jersey Divorce Guide and the founder of Shaw Divorce & Family Law LLC in Somerville, New Jersey.
ASSOCIATIONS & MEMBERSHIPS:
- American Bar Association - Family Law Section
- New Jersey State Bar Association – Family Law Section
- New Jersey State Bar Association – Appellate Practice Special Committee
- Somerset County Family Law Practice Committee
- MENSA International