Types of Divorce
From a legal perspective, New Jersey classifies the dissolution of a marriage simply as uncontested or contested. Divorce can be initiated by either spouse. Since the advent of no – fault divorce, the most common reason stated is simply irreconcilable differences. It is rare for the court to inquire as to the differences.
The legal distinction between types of divorce is simple, but in reality, each divorce is as unique as the individuals involved. Most dissolutions of marriage fall somewhere along a continuum, bounded by amicable agreement and all-out war.
In an uncontested divorce, the couple works out an agreement on all division of assets and debt. This will include division of all property/assets, including retirement accounts, the family home, vehicles, investments and Aunt Sally’s blue china plate. It may include terms of any limited or permanent alimony, and a determination of how any debts will be settled. This agreement is formally written into a property settlement agreement (contract) which becomes part of the final judgment of divorce.
If the couple has children, the parents must agree on all details of child support, medical insurance, cost of education, sports, music lessons and other expenses. Their agreement must include decisions on legal and physical custody (sole, joint, combined), parenting time for a non-custodial parent, expenses involved in transporting the child between homes, and may involve agreements on special features such as video calls and religious instruction. If the couple can not agree then the Courts will make those decisions, something both parties should try to avoid as it is their children and they should do what is in the best interests of the child/children.
Related issues that may be included in the agreement include terms of temporary separation, grandparents’ visitation rights, and provisions for re-evaluating child custody post-divorce.
An important feature provided by uncontested divorce is privacy. In a contested (litigated) divorce, the record of court proceedings is a public record that may cause pain or embarrassment to the couple, their children and other parties.
Uncontested divorce is, compared to litigation (contested divorce), economical in financial and emotional terms. Attorney fees are kept to a minimum. There are no public arguments. Some couples with few assets and liabilities and no children even opt for do-it-yourself (DIY) divorce, preparing documents and presenting them directly to the courts. There are hazards, however, to DIY divorce, or budget attorney packages. Under the stress of emotional exhaustion or guilt, a party may agree to terms that are clearly unfair. The couple may overlook significant property or financial issues, fail to consider future changes in circumstances, or not understand the impact of the agreement on welfare or medical assistance payments.
Contested divorce (litigation)
In a contested divorce, the spouses fail to agree on some or all terms of division of property, child support and custody, and alimony. Spouses are represented by separate attorneys; the role of each is solely to protect the interests of his or her client. The litigation process may include discovery, investigations of marital assets, psychological evaluations of parents and children, motion practice, multiple court dates and postponements. The validity of a pre-nuptial agreement may be questioned. Ideally, divorce lawyers act as voices of reason in an emotionally charged space, helping their clients reach fair agreements on as many points as possible, only taking the most contentious issues to court. Finally a judge, working on the basis of court documents and proceedings, decides all terms of the divorce.
Child custody is the most complex and challenging issue in contested divorce. The law does not favor either parent as custodian, but will look at time away from home, living situations, the child’s relationship with each parent and the effect on the child’s education and social life when deciding custody issues.
Despite famous stories of contested divorce proceedings that devour the bulk of the marital estate or take years to resolve, most contested divorces are resolved in a reasonable fashion.
Legal separation, divorce from bed and board and annulment as alternatives to divorce
Some individuals, for religious or other reasons, choose not to divorce. Some choose instead a legal separation, living apart and limiting their financial relationships with their spouses. Others petition the court for annulment. An annulment is essentially a statement that the marriage did not exist. In New Jersey there are divorces from ”bed and board”-which allows the parties to live separate and apart, completely divide their assets and liabilities, determine alimony and child support, and allows for one spouse to keep the other spouse on their health insurance coverage. Neither party, however, can re-marry.