If you’re going through a divorce, or about to, you know the divorce really started a long time ago, but from a strictly legal perspective, the divorce doesn’t really “start” until there is a Complaint filed.
A Complaint is a legal document that initiates a court action, any court action. In the case of a divorce, it’s a “Complaint for Divorce” and it’s filed in the Family Part of the NJ Superior Court.
I don’t want to get all technical on you so I will try to explain this in laymen’s terms the best I can.
So let’s back up a bit. The Complaint for Divorce gets the court involved. But many divorces really get their engines going before that. I’ll explain what that looks like and why it might be a good idea to do it that way (and when it’s not a good idea to do it that way).
Once the court gets involved, you are on a train that you can’t really stop – and you can’t control the speed at which it operates either. There are various court dates that come up, and various documents that have to be filed at different times (e.g. Answer to a Complaint, Case Management Order, ESP memorandum, etc.), which means your attorney has to prepare them, and that costs money, as many of you probably have experienced already. This is how a divorce can start to become very costly.
So if we rewind a bit, before anyone has filed the Complaint, there are ways to “start” the divorce without getting on the court train. Here they are:
- Don’t consult with an attorney and negotiate with your spouse and/or go to mediation without attorneys. I DO NOT recommend that you engage in extensive negotiations with your spouse (especially about money) without having consulted with an attorney. The reason for that is because in order for you to make decisions about how much you should pay or how much you should receive, you should know what the law provides on those topics. You could be giving away too much (or not receiving enough) and you wouldn’t even know it. Now, if you want to give away too much, or accept less than what you’re entitled to, that’s your choice, but you should know that you are. The only way you could know that is if you talk to an experienced divorce lawyer in your state.
- Consult with an attorney about your rights and obligations and negotiate with your spouse yourself.Like I said above, to be in the best position to negotiate, you should know what you’re entitled to. That way, you know what to ask for and you know if you’re asking for too little or too much. You can always consult with an attorney and then engage in negotiations yourself with your spouse. We know attorneys are expensive and if you can have a conversation with your spouse to settle, then that’s the best situation to be in. Also note that you don’t have to tell your spouse that you consulted with an attorney if you think that’s going to interfere with having a hospitable dynamic between the two of you when you negotiate. But you should be informed so you can make intelligent decisions.
- Consult with an attorney about your rights and obligations and attend mediation without attorneys to negotiate with your spouse.I’ve already explained why it’s very important you consult with an attorney. I can’t emphasize that enough. Once you’ve done that, if you can’t have a civil conversation with your spouse, or it’s just too uncomfortable, you can use the services of a mediator. A mediator is a neutral third party (should be a divorce lawyer) to help facilitate a discussion and help you reach an agreement. Keep in mind that the mediator is not your attorney, he/she is not there to give you legal advice or tell you if the agreement is fair. So don’t rely on any “advice” the mediator gives you. This is why I emphasize consulting with an attorney before you engage in negotiations. So that you are prepared and informed.
- Consult with an attorney about your rights and obligations and attend mediation with attorneys. If you don’t feel comfortable being at mediation alone, you can bring an attorney with you. This ensures that you have someone with you while you are engaging in settlement discussions to help guide you through the process and answer any questions about what is being discussed or proposed while you’re there.
In our next installment of Anatomy of a Divorce, I will talk about when it’s NOT prudent to hold off on filing a Complaint.
If you have any questions about this process or you need someone to assist you in getting your divorce started, we have experienced attorneys at Netsquire that can help you do that. Get started with us by scheduling your Client Vision Meeting here.