If you live in one of the New Jersey counties that permits default divorces without appearance, it is possible to complete a divorce without ever setting foot in the courthouse. This can save time and money as well as emotional strain.
How do you know if you qualify for a divorce without appearance?
First, you may not ask the court to decide any issues between you and your spouse. The court can only be asked to grant a divorce and, when applicable, to permit the resumption of a maiden name by one spouse upon divorce. This means that all claims and issues must be resolved and in writing, or waived. If you have disputes that are not resolved, you need to deal with them before you can ask for a no-appearance divorce.
Second, your divorce case must be venued in a New Jersey county that has implemented a divorce without appearance program. Rules of venue determine which county is able to handle your divorce. Without getting too complicated, generally, you can file for divorce in the New Jersey county where you or your spouse presently reside and often you can file in the county where you used to reside together, depending on the grounds of divorce that you intend to use. Consulting an attorney is the simplest way to ascertain what your ground for divorce will be and which counties may have venue. That decision is based upon New Jersey Court Rule 5:7-1 and N.J.S.A. 2A:34-2 and the facts relevant to your grounds for divorce.
Which counties offer the no-appearance divorce?
Atlantic, Cape May, Hudson, Hunterdon, Mercer, Middlesex, Somerset, and Warren all offer no-appearance divorces. Camden permits them under limited circumstances.1
How do you get yourself into position to take advantage of a no-appearance divorce?
You work out all the issues that a court would consider if there were a contested divorce trial and memorialize the solution in a written agreement that meets the court’s requirements. The agreement will be signed by both of you. It doesn’t matter to the court whether you worked it out yourselves, or with the assistance of a mediator guiding both of you, or with the assistance of a lawyer for one of you, or two lawyers representing each of you, so long as the agreement is complete, in writing, and you both signed it voluntarily. The court is not going to review it and pass on the fairness of the agreement you both entered into, so long as you represent to the court in the agreement that you each understand it, entered into it voluntarily, and intend to be bound by it.
The agreement is important because it will be submitted to the court to be attached to and incorporated in the Final Judgment of Divorce that the court enters.
Once the agreement is completed, a divorce complaint can be filed (if one was not already filed). It must be served on the other spouse. This can be done by the spouse or his/her attorney signing an acknowledgement of service that acknowledges receipt of the complaint for divorce. This should be notarized if the spouse signs it instead of his or her attorney. Now the spouse named in the acknowledgement technically has 35 days to answer the complaint or file a counterclaim. He or she is not going to answer or file a counterclaim if he/she is satisfied that the complaint only requests a divorce, incorporates the agreement signed by both parties, and permits resumption of a maiden name, if desired by the other spouse. Filing no responsive pleading also eliminates the cost of a second filing fee that would be paid if an answer or counterclaim were filed. Once the 35-day period passes, a request to enter default and an affidavit of non-military service (accompanied by the requisite military search) are prepared to be submitted to the court to obtain entry of a default against a spouse who is not on active duty.
A Final Judgment of Divorce must be prepared to be submitted to the court for entry. We often ask the non-answering spouse to sign a consent on the Final Judgment of Divorce as further indication that the matter is resolved. This also allows the non-answering spouse to see exactly what the Final Judgment will say before it is submitted to the court. The signed agreement is attached to the Final Judgment of Divorce. Enough copies must be submitted so that the original can be kept by the court as well as copies to be certified for each party and for their legal counsel.
In all the counties you should submit proof of service (the signed acknowledgement), the request to enter default, the affidavit of non-military service with the search attached, and the Final Judgment with agreement attached to the court, the same as if you were requesting a date to appear in court for an uncontested divorce hearing.
Each participating county has slightly varying requirements to process the divorce without an appearance. As these may change from time to time, it is recommended that your legal counsel check with the county to be sure the documents that are submitted will meet that court staff’s scrutiny. Some counties want an additional certification by the spouse seeking the divorce, attesting to the elements of the cause of action or verifying that the information in the complaint is true. A cover letter submitting the documents with a general request to enter a no-appearance default divorce is sufficient in at least one county. Middlesex County requirements appear on the NJCourtsOnline website at http://www.judiciary.state.nj.us/middlesex/ProSeDefaultNoAppearance.pdf.
We recommend the use of a certification to be reviewed and signed by the spouse who is seeking the divorce. That certification states the information that we would typically ask the client under oath in court if he or she appeared in person at the uncontested divorce hearing. It also includes any specific information that the particular county requires for a no-appearance divorce. This certification is sent with the package of documents. When the court staff and judge have approved them, a signed Final Judgment of Divorce is returned through the mail. The interval varies based upon the workload of each staff and judge.
This is a practical and cost-saving way to complete many divorces and an approach you may want to consider if your situation qualifies. Completing an uncontested divorce in person can take half a day plus travel time, even though the actual testimony time is often 15-30 minutes. This time is reduced considerably with a no-appearance submission and you avoid the need to appear in court at all.
There are situations where this process is not appropriate. Moreover, there are individuals for whom the ceremonial pronouncement of the end of the marriage is emotionally helpful to moving on, regardless of the efficiency of a non-appearance divorce. Divorce is personal. These are some of the ways the process can be adapted to suit your personal choices and budget.
Endnotes:
1 The parties must have no children. All matters must be resolved in a written settlement agreement.
©2009 Law & Mediation Office of Catherine A. Ross
