An uncontested divorce simply means that both spouses agree on all the key terms of the divorce, including:
If you or your spouse disagree about any of these items, the court will consider your divorce "contested," and it will go to a trial. Keep in mind you can still reach an agreement at any time before the judge issues a final judgment.
According to N. J. Court Rule 5:1-4(a)(3), a divorce is eligible for listing on an expedited track (meaning, moved along more quickly) if it meets the following conditions:
There are a couple of preliminary hurdles you’ll have to clear before you can get divorced in New Jersey. Keep these in mind before you get started. First, there are residency requirements for divorce. The most common is that one of the spouses must have lived in New Jersey for at least one year before the first divorce papers are filed with the court, except if the divorce is based on adultery. (N.J.S.A. 2A:34-10.)
Second, you'll need to have a "ground" (legal cause) for the divorce. Most people will select “irreconcilable differences,” which means that for the last six months you and your spouse have experienced a breakdown in your relationship, and the marriage can’t be saved. This is considered a “no-fault” ground for divorce, because the spouse filing for divorce isn’t pointing a finger of blame at the other spouse. Another no-fault ground for divorce is when the couple have lived separate and apart in different habitations for at least 18 consecutive months, and there’s no prospect of them reconciling.
A spouse also has the option of basing the divorce on “fault” grounds. These include adultery, extreme cruelty, desertion, voluntarily induced narcotic addiction or habitual drunkenness, institutionalization for mental illness, deviant sexual conduct, and imprisonment. You can find the specifics of New Jersey’s grounds for divorce at N.J.S.A. 2A:34-2.
Typically, there isn’t much—if anything—to be gained by filing for divorce on fault-based grounds. And use of those grounds would likely antagonize the other spouse and prolong the divorce process. So discuss this with an attorney before deciding which route to take.
Successfully navigating the road to an uncontested divorce in New Jersey requires careful attention to detail, and an awareness of the pertinent New Jersey laws and court rules. The sections below will assist you, but if you have specific questions, speak with a local divorce attorney.
If you’re the "plaintiff" (the spouse who starts the divorce), the first thing that you need to do is locate the correct forms (known as “pleadings”) and complete them. You can find some of the forms at the New Jersey Courts website, or you can get them from the clerk at the county courthouse. One key document you'll prepare is the divorce complaint, which gives the court information about you, your marriage, and what you’re asking for in the divorce (such as alimony and child support). You’ll also need a summons, a certification of insurance, and a case information statement.
Next, you’ll have to file your paperwork. Ordinarily, you’ll file with the clerk of the court in the New Jersey county in which you live(d) when your ground for divorce arose. You can use the New Jersey Courts website to identify the court you’ll be using. (Look at New Jersey Court Rule 5:7-1 to find more information about the appropriate county in which to file. The Rules of Court are available on the court website.)
Note that the clerk of the court will charge a filing fee, but if you can't afford to pay you can ask for a fee waiver form, which you’ll fill out and use to provide the court with financial information. If you meet the income guidelines, a judge will sign an order eliminating fees for the duration of the case.
Once you’ve filed your papers, you need to serve them on the "defendant" (the other spouse) by having them delivered. If you and your spouse are on good terms, you can give the documents to your spouse informally and have your spouse sign an “acknowledgement of service”, which you must then file. If you think your spouse won’t cooperate, you’ll have to serve the papers through a process server or sheriff’s deputy.
The defendant can respond to the complaint by filing: an answer; or, an answer and counterclaim (which is when defendants file their own complaint against a plaintiff); or, an appearance (which means the defendant isn’t contesting the contents of the complaint, but wants to be heard on the things you’re asking the court to give you). The response pleading is due 35 days after the defendant receives service of the complaint.
If the defendant doesn’t file a response within the 35-day time period, the plaintiff can request a default from the court. This frequently occurs in uncontested cases, because by that time all the issues are resolved, and there’s normally no need for the defendant to file a response. Once a default is filed, the court will assign a hearing date to finalize the divorce. Despite the default, the defendant can appear at the final hearing.
A self-help guide provided by New Jersey Legal Services can be a useful tool in navigating the filing requirements for divorce. (You can also take a look at New Jersey Court Rules 5:4-2 and 5:4-3.)
Remember that for a court to view your case as truly uncontested, you need to have resolved all issues. If you and your spouse can do that on your own . . . great! But you may find you need the assistance of attorneys or a qualified mediator. Amicably resolving your differences will likely reduce the stress, uncertainty, and expense of a trial.
Once you’ve agreed on terms, the best thing to do is memorialize them in a divorce settlement agreement (sometimes referred to as a “property settlement agreement” or a “marital settlement agreement”). This agreement is a written contract between you and your spouse and, when properly executed, is binding on both of you. When you finalize your divorce, the agreement is incorporated into the final judgment. If you and your spouse prepared the agreement on your own, it’s important for each of you to have separate attorneys review the agreement with you to make sure you understand the implications of the terms, and to confirm that the agreement meets all legal requirements.
There’s nothing preventing you from entering into a property settlement agreement before you file for divorce. In fact, it’s encouraged. And although ending a marriage is rarely (if ever) cheap, filing for the dissolution of your marriage with a property settlement agreement in hand is as close to an inexpensive divorce in New Jersey as you’re likely to get.
Although an uncontested divorce hearing in New Jersey is often seen as a formality, it’s important that you be prepared. This is another reason why having a family law attorney helps, because the attorney can review all aspects of the hearing with you in advance, so you’ll know what to expect when it’s your turn to appear before the judge. And the attorney can lead you through certain questions without the judge having to do it, which can help relieve anxiety.
At the hearing, the judge will look at your paperwork to make sure everything is in order. (The judge will probably have most of the paperwork already, but take a look at the self-help guide referenced above to see suggestions for what you should bring with you to court.) If you have a written property settlement agreement, the court will enter it into evidence. Judges usually won’t ask you about the specific terms in the agreement, but they will need some general information. For example, the judge will want you to confirm that you fully understand the agreement, that you entered into it voluntarily, and that you feel it’s fair and equitable.
If you’re the defendant in the case, and a default has been entered, it’s still a good idea for you to appear at the hearing. That way you can monitor what the plaintiff is saying, to make sure it comports with your understanding of the agreement you’ve reached. And, you can also testify as to the agreement, as the plaintiff did.
When the hearing is finished, the judge will sign the Judgment of Divorce that you’ve prepared in advance.