How Does Divorce Work with an Unresponsive Spouse?
Explore with our law firm the details of a default divorce in New Jersey when one of the parties refuses to respond or participate in the divorce proceedings.
Divorce in New Jersey can be complicated, even for those who agree to go their separate ways. Sometimes, an unresponsive spouse further complicates the matter. The laws and court rules governing divorce may be confusing, and they may change from one year to the next. If you are planning for divorce, be sure to consult with a family attorney. The better prepared you are, the smoother the legal proceedings will go. But even if you cannot meet with an attorney before you start divorce proceedings, you can still get invaluable legal help after filing divorce papers with the court. Sometimes you cannot avoid a disagreeable divorce or must remove yourself from your home to avoid danger to you or your children. Whether your divorce is amicable or contentious, there are some essential details you need to know about from the start. And in the case of a spouse who is not responding or cooperating with the process, it is critical to know what you need to do and what your options are when the other party won’t accept or sign your divorce papers.
First You Must File the Complaint
You need to fill out the Complaint for Divorce (also called Dissolution) and file it with the court to start your divorce. In the Complaint, you must affirm your New Jersey residency. To file a divorce complaint in New Jersey, you must be a resident for 12 consecutive months before you file (N.J.S.A. 2A-34:10). You must also choose the correct divorce form from the New Jersey Court website if you plan to represent yourself. Otherwise, your attorney can supply you with the proper form.
Divorce Form if You Choose No-Fault
One form is for a no-fault divorce, which means irreconcilable differences led to the divorce and not the fault of one or both parties. You choose this option if you and your spouse have difficulty agreeing and getting along. For example, if you and your spouse have had irreconcilable differences for minimally six months before filing for divorce, you choose one form. Or, if you and your spouse separated minimally 18 months before you filed your Complaint, you use another form.
Form if You Pursue the Fault-based Option
The other type of divorce is a fault divorce. For this type of divorce, you choose the grounds for the divorce. For example, you could select the extreme cruelty of your spouse as the reason for the divorce. If your spouse physically abused you or otherwise behaved violently toward you for minimally three months before filing for divorce, you use one form. If your spouse left you minimally 12 months before filing for divorce, you choose the form for desertion as the fault grounds. Other grounds also exist, though extreme cruelty and desertion are the most common. Accompanying the Complaint are several other documents that must accompany the Complaint that you find on the court website. You must also post a filing fee unless you get a fee waiver from the court.
How to Serve the Divorce Papers
After filing the papers with the court of proper jurisdiction (where the actions happened leading up to the divorce) and paying your fee, you must personally serve your spouse with the filed divorce complaint copy and summons. You have six months from the date of filing to serve the divorce papers. Personal service means the county sheriff, a process server, or a neutral person over the age of 18 hands a copy of the divorce paperwork to your spouse at home or work. If you and your spouse agree to the divorce, your spouse may accept service from you by signing a waiver for the service or accepting the papers from an attorney. You then file the proof of service with the court.
However, if your spouse does not agree to service and a process server is unsuccessful in serving your spouse, you can serve them by alternative means. For example, with the court’s authorization, you could serve them by certified mail, email, text, social media, or publication in a newspaper (if you cannot locate your spouse). And if your spouse lives outside New Jersey, you must contact the sheriff’s department where he lives for service. However, spouses in the military or prison are more challenging to serve. There are specific rules for serving military or incarcerated spouses that you must follow to serve them properly.
Giving Your Spouse 35 Days to Respond
Once you serve the papers, your spouse has 35 days from the date of receiving the divorce papers to appear, answer, or counterclaim. An appearance means your spouse does not contest the divorce but may object to what you ask for in your Complaint, such as property division, support, or child custody arrangements. An answer more specifically responds to each item in your Complaint, and a counterclaim contains the responding party’s declared reasons for the divorce.
Getting a Default Judgement of Divorce in NJ
If your spouse does nothing after 35 days (and is not in the military), you can request a default judgment within 60 days of the last day they had to respond. If you both agree that your spouse defaults and in the interest of saving time and money, you can both sign a marital agreement after each of you reviews it with separate attorneys.
In some courts, you can file the marital agreement and other paperwork the court requires to obtain a default judgment without appearing in court. In other courts, you must appear in front of the judge for a default hearing. After sending notice of the hearing date and a proposed judgment to your spouse, you must appear for the judge to sign the judgment. However, if you do not have a signed marital agreement, you must serve a notice on the defaulted spouse that you intend to apply for the judge to equitably divide your assets and debts, including a list of those assets and debts. You must give the defaulting party 20 days’ notice before the hearing by mail, certified mail, or personal service.
At the hearing, a judge may ask if you and your spouse, if they appear at the hearing, understand the terms of the agreement you signed, among other questions regarding your waiving a right to trial. If your spouse appears at the hearing and you do not have a settlement agreement, the judge may allow them to explain why they defaulted and vacate the default if they request to set it aside. Your spouse may then respond to the divorce complaint.
If the judge grants the default judgment, you have a divorce decree after the court clerk enters the judgment that spells out the terms of your divorce, such as property and debt division, spousal support, child support, if applicable, and child custody.
Looking for a Qualified Attorney to Handle your Default Divorce in Passaic County?
Even a default divorce comes with a strict timeline with deadlines to meet and complex specifications. For this reason, it is highly advisable to hire an attorney who can do more than merely file paperwork for you. Besides advising you what you can and cannot do by law regarding service and marital agreements, our Passaic County Family Law Attorneys at The Montanari Law Group, LLC, can help you arrive at a settlement with your spouse.
We know the law and the court procedures, and we can advise and advocate on your behalf every step of the way. Whether the nature of your case demands a litigated, contested divorce, or a default divorce, you can count on our knowledge and experience to help you pursue the best option for your needs.
If you reside in Bloomingdale, Pompton Lakes, Hawthorne, West Milford, or any other town nearby Passaic County, contact us online or call us at (973) 233-4396 to find the right family law attorney to guide you through a divorce in a free and initial consultation today.